Fink v. Gerrish

• Decision Date: 08 April 1957
• Citation: 149 F. Supp. 915
• Parties: Joseph FINK, Plaintiff, v. Donald W. GERRISH and Randall U. Cox, Defendants.
• Court: U.S. District Court — Southern District of New York

149 F. Supp. 915

Joseph FINK, Plaintiff, v. Donald W. GERRISH and Randall U. Cox, Defendants.

United States District Court S. D. New York.

April 8, 1957.

Joseph Spencer, New York City, for plaintiff.

Paul W. Williams, U. S. Atty. for Southern Dist. of New York, New York City, for defendants (James R. Lunney, New York City, of counsel).

MURPHY, District Judge.

Plaintiff moves to remand this cause to the Municipal Court of the City of New York whence it was removed on petition of the United States Attorney under authority of § 1442(a) (1) of Title 28 U.S.C.

This action, as stated in the "oral" complaint filed in the Municipal Court, is described as an

"1) Action for personal injuries and property damage sustained by the plaintiff on December 6, 1956 by reason of the negligence and illegal conduct of the defendants in the operation of a motor vehicle, the 1956 license number of which was 67 44 DC, at or in the vicinity of Horace Harding Boulevard near Crotona Avenue. Plaintiff's injuries and damages were so sustained solely by reason of the negligence and wanton misconduct of the defendants and without any negligence on the part of the plaintiff contributing thereto.

"2) Action for false arrest.

"3) Action for false imprisonment."

In the petition for removal it is alleged by the Assistant United States Attorney that:

"This action is one for personal injuries and property damage alleged to have been sustained by the plaintiff when he was struck by an automobile operated by the defendants.

"That said automobile was being used by the defendants within the scope of their employment as employees of the U. S. Department of Justice, Immigration and Naturalization Service."

No other facts are alleged in the removal petition nor is there any statement referring to the causes of action for false arrest and false imprisonment. The petition merely relies, after alleging the above, on the statute, Title 28 U.S.C. § 1442(a) (1).

The government in support of the removal places much reliance on Brann v. McBurnett, D.C.E.D.Ark.1939, 29 F. Supp. 188, 189. That was an action brought in a State court against a United States Marshal for negligently operating an automobile while transporting prisoners. The District Court, upholding removal, held that the Marshal was acting under the authority and direction of the court in transporting the prisoners to the federal penitentiary at Leavenworth and, therefore, was acting "in the performance of his duties as such officer." With deference we disagree.

It would seem that the test for removal is not whether the government employee was acting in the performance of his duties, but rather whether the act complained of was under color of such office or of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. In the instant case the government makes no claim with regard to the second and third causes of action for false arrest and false imprisonment so we need not concern...