Samuel S. Glauber, Inc. v. Lehigh Valley R. Co.

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Julius L. Goldstein, of New York City, for plaintiff
• Citation: Samuel S. Glauber, Inc. v. Lehigh Valley R. Co., 8 F.Supp. 347 (S.D. N.Y. 1934)
• Decision Date: 31 August 1934
• Parties: SAMUEL S. GLAUBER, Inc., v. LEHIGH VALLEY R. CO.

8 F. Supp. 347

SAMUEL S. GLAUBER, Inc., v. LEHIGH VALLEY R. CO.

District Court, S. D. New York.

August 31, 1934.

Julius L. Goldstein, of New York City, for plaintiff.

Alexander & Green, of New York City, for defendant.

HULBERT, District Judge.

There appears to be a great diversity of opinion in the several Circuit and District Courts as to when an application for removal of an action from a state court to a United States District Court must be made.

In the Southern District of New York, however, it has been consistently held, for many years, that the application is seasonably made at any time before an answer is required to be served whether the time has been extended by the state court, a state statute, or by stipulation between the attorneys for the respective parties, but no reported case in the official reports in this district has been called to my attention, nor have I been able to find any since Dancel v. Goodyear Shoe Machinery Co. of Portland, Me. (C. C.) 106 F. 551 (Lacombe, C. J., 1900.)

The pending action was brought, under the Interstate Commerce Act (49 USCA § 1 et seq.), to recover $1,568.95, alleged overcharges made by defendant for transportation of 51 separate shipments of freight from Dayton, Ohio, to New York City.

It was commenced in the City Court of the city of New York, county of New York, by service of the summons and complaint on July 5, 1934.

Section 49 of the New York City Court Act required the defendant to appear and answer within six days from that date (or July 11th). On July 10, 1934, defendant served an affidavit and notice of motion, returnable July 17, 1934, for judgment "dismissing the complaint herein, and each and every alleged cause of action therein, upon the grounds that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause or causes of actions, and that the Court has not jurisdiction of the subject of the action, and in the event of the denial of said motion, for an order directing the plaintiff to serve an amended complaint herein, separately stating and numbering each of the alleged causes of action attempted to be set forth in the complaint, namely, the alleged cause of action attempted to be set forth as to each of the several alleged separated shipments referred to in the complaint, and further ordering that the complaint and each of the alleged causes of action attempted to be set forth therein be made more definite and certain in the following respects, to wit:

"(1) To set forth what plaintiff claims were the proper rates, how, when and where the same were established and maintained, and

"(2) What plaintiff claims were and what plaintiff claims should have been the basis of the charges collected by the defendant and paid by the plaintiff with respect to each alleged shipment referred to in the complaint, and for such other and further relief in the premises as may be just."

Section 283 of the New York Civil Practice Act provides:

"§ 283. Pleading After Disposition of Motion. If objections to a pleading, presented by motion, be not sustained, the moving party may serve an answer or reply, or an amended answer or reply where he has pleaded to a separate cause of action, counterclaim or defense not affected by the motion, as a matter of right, after the decision of the motion and before the expiration of ten days after service of notice of the entry of the order deciding the motion, unless the court shall be of the opinion, to be stated in the order, that the objections are frivolous. Upon the decision of a point of law, at trial or special term or in the appellate division or court of appeals, the court, in its discretion, also may allow the party in fault to plead anew or amend, upon such terms as are just."

Section 72 of Title 28, USCA, reads:

"§ 72. (Judicial Code, section 29.) Same; Procedure. Whenever any party entitled to remove any suit mentioned in section 71 of this title, except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition, duly verified, in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court to be held in the district where such suit is pending, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same. The said copy being entered within said thirty days as aforesaid in said district court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said district court."

On January 4, 1934, my colleague, Judge Patterson, wrote, in Earle C. Anthony v. National Broadcasting Company, Inc. (since reported 8 F. Supp. D. C. 346), as follows: "The motion to remand is denied. * * * The extensions of time to answer which were signed by the plaintiff's attorney extended also the time within which the case might be removed. There was a time when the rule in this district was otherwise. Schipper v. Consumer Cordage Co. (C. C.) 72 F. 803. But for more than thirty years it has been held consistently here that a stipulation to extend the defendant's time to answer signed by the attorneys operated to extend the time for removal to the federal court, Mayer v. Fort Worth & D. C. R. Co. (C. C.) 93 F. 601; Dancel v. Goodyear Shoe Machinery Co. of Portland, Me. (C. C.) 106 F. 551."

More recently, in the case of Majestic-New York, Inc., v. Baltimore and Ohio Railroad Company, Judge Bondy denied a motion similar to that now under consideration (L. 57—73).¹

In the instant case, it is urged that the New York state statute (section 283 Civil Practice Act) only operated — automatically — to extend the time of the defendant to plead until the decision by the New York court of the motion addressed to it, and that, since that part of defendant's motion for an order making the complaint more definite and certain is not within section 283, Civil Practice Act (255 Fifth Avenue Corporation v. Freeman, 120 Misc. 472, 199 N. Y. S. 519), the defendant submitted itself to the jurisdiction of the City Court of New York and waived any right it had to an order of removal.

In the case of Hansford v. Stone-Ordean-Wells Co. (D. C.) 201 F. 185, which arose in Montana, it appeared that on October 17, 1912, one day before the defendant was required to answer or plead to the plaintiff's complaint, a stipulation was entered into and signed by the counsel for both parties, extending the time for the defendant to plead up to and including October 28, 1912. On October 26th the defendant filed the proper removal papers. The plaintiff contended they were not filed in time. The court said (at page 186 of 201 F.):

"The laws of Montana and the rule of the said state court authorize stipulations for extension of time like unto that herein. No order of court is necessary to vitalize them. They operate proprio vigore.

"Their effect is that the defendant is not `required' to answer or plead to the complaint until at the time when the stipulated time is on the point of expiration, and such is the effect of the stipulation in this case. No default could have been entered against the defendant until after that time. `Required' in the removal act has reference to the time when the defendant to avoid any default must necessarily answer or plead to the complaint. Until that time comes and at it, whether fixed by statute, by rule, or by agreement between the parties, whether it is the time originally limited or that time extended, the right of removal continues, and can be exercised. Extending the time to answer or plead, to defend, the principal thing, extends the time for removal, to choose the forum wherein to defend, an included incidental thing. The time to plead is the measure of the time to remove — is the time to remove. The federal law and the state law must be read together. The former prescribes a limitation; the latter the extent of it. * * *"

In the case of Quilhot v. Hamer (C. C.) 158 F. 188, which arose in New York, the action had been removed from the Supreme Court, Montgomery county, to the Northern District of New York, and upon a motion to remand it appeared that the plaintiff entered judgment by default against the defendant on December 12, 1906. On April 2, 1907, the defendant applied for an order opening the default and vacating the judgment and annexed a proposed order. This motion was argued on April 13th, and the court, in ordering that the motion be granted, directed that the answer tendered stand as served on the date of service of the motion papers, on condition that the defendant pay certain costs and disbursements within fifteen days from the date of the order. The defendant sought to remove its case before the expiration of the fifteen days from date of the order. The state court held, however, that the time to plead had expired on April...