Hinman v. Barrett

• Decision Date: 21 August 1917
• Citation: 244 F. 621
• Parties: HINMAN v. BARRETT.
• Court: U.S. District Court — Northern District of New York

244 F. 621

HINMAN v. BARRETT.

United States District Court, N.D. New York.

August 21, 1917

Reuben S. Calkins, of Albany, N.Y., for plaintiff.

Stires & Dawley, of New York City, for defendant.

RAY District Judge.

After service of the summons and complaint on the defendant April 10, 1917, he appeared generally by his attorneys and obtained, by stipulation, an extension of time in which to serve his answer until May 21, 1917. Just prior to the expiration of this time, and in the afternoon of May 21st defendant, by his attorneys presented to Justice Hasbrouck of the Supreme Court, in which court the action was brought and was then pending, a petition of removal with the necessary bond on removal. The defendant served notice before filing such petition that he would present and file such a petition and bond for removal and apply for the approval of such bond, but did not state when or where he would apply or to what judge. The notice reads as follows:

'Supreme Court of the State of New York.

County of Albany.

William F. Hinman, Plaintiff, against Thomas F. Barrett, Defendant.

'Please to take notice that on the 21st day of May, 1917, and immediately after the service hereof upon you, we shall file in the office of the clerk of the county of Albany, state of New York, being the clerk of the Supreme Court in and for said county of Albany, the petition, a copy of which is hereto annexed, for the removal of the above-entitled cause to the District Court of the United States for the Northern District of New York, and that we shall also then and there file the bond, a copy of which is hereto annexed, and at the same time apply for the approval of the said bond, and for such other or further relief as may be just. Yours, etc Stires & Dawley, Attorneys for Defendant-Petitioner, 45 Cedar Street, New York, N.Y.

'To Reubin S. Calkins, Esq., Attorney for Plaintiff, 12 Pine Street, Albany, New York.'

Judge Hasbrouck, at 3 p.m. May 21, 1917, on presentation of such petition, notice, and bond, copies of which had been served on plaintiff's attorney at 1:30 p.m. of that day, approved the bond, and at 3:30 p.m. of that day the defendant filed such petition, notice, and bond in the office of the clerk of the county of Albany, N.Y., in which county the venue of the action was laid. The clerk stamped same as filed at 3:30 p.m. May 21, 1917. The clerk was then and there requested to certify such record of the case to the clerk of this United States District Court for the Northern District of New York, which he did as soon as necessary copies for certification could be made, and same duly certified were forwarded May 25th, and received and filed by the clerk of the United States District Court May 27, 1917.

It would seem that Mr. Calkins, the plaintiff's attorney, ignored such papers so served on him for May 25th, the same day the record on removal was forwarded to the clerk of the United States District Court, he served on defendant's attorney a copy of a judgment in this action taken as on default entered in Albany county clerk's office May 24, for $10,398.49, with a notice of entry of same. Thereupon defendant moved to vacate and set aside such judgment on the ground the cause had been removed to the United States District Court, and that the state court had lost jurisdiction, and this motion is pending awaiting the determination of this application. No motion to remand the cause has been made so far as this court is advised.

The petition for removal is defective in that it fails to allege that the parties are citizens of different states. It does allege that the plaintiff is a resident of the state of Pennsylvania, and that defendant is a resident of the state of New York, Northern District, in which state the action was brought, but says nothing as to citizenship, except in the prayer it says: 'Wherefore your petitioner prays that this cause be removed into the District Court of the United States for the Northern District of New York on the ground of diversity of citizenship between the plaintiff and the defendant herein,' etc.

The petition contains the necessary averment as to amount in controversy between the parties. These statements as to the residence of the parties with the statement in the prayer of the petition plainly indicate the ground on which removal was sought, viz. diversity of citizenship, but are not the equivalent of the necessary allegations of diversity of citizenship. Residence is one thing, but citizenship is another. A person may reside for months or even years in a state without being a citizen thereof.

The plaintiff claims that there was no removal of the cause because of this defect in the petition, and for the reason the removal should have been made within 20 days of the service of the summons and complaint, as under the New York Code of Civil Procedure a defendant, in case of personal service, as here, is required to plead within that time. But a defendant is not required by law to plead until the time fixed by order,...