Solomon v. Pennsylvania R. Co.

• Decision Date: 16 March 1917
• Parties: SOLOMON v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Eastern District of New York

240 F. 231

SOLOMON v. PENNSYLVANIA R. CO.

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

March 16, 1917

Hardin & Hess, of New York City (Jerome S. Hess and Harold B. Elgar both of New York City, of counsel), for plaintiff.

White &amp Case, of New York City (Howard C. Reid, of New York City, of counsel), for defendant.

CHATFIELD District Judge.

A motion has been made to remand this action to the state court upon a claim that the removal proceedings were not instituted until after expiration of the time provided for removal by section 29 of the Judicial Code. The provision in question is as follows:

'Whenever any party entitled to remove any suit * * * may desire to remove such suit, * * * 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,' etc.

In the case of Russell v. Harriman Land Co. (C.C.) 145 F. 745, it was held that, if the time to 'answer or plead' has been extended, a petition to remove may be filed before the expiration of the extended time. In that case the extension was accomplished by a stipulation providing for an absolute stay, which was, by the terms of the stipulation, not to be counted as a part of the time elapsing in the litigation. The court therein referred to the case of Mayer v. Ft. Worth & D.C. R. Co. (C.C.) 93 F. 601, in which a written stipulation to extend defendant's time was held sufficient, even without order of the state court, and also to the case of Groton Bridge & Mfg. Co. v. American Bridge Co. (C.C.) 137 F. 284, in which a written stipulation extending the time to answer or plead was held to extend the time within which removal could be demanded.

In the present case, service was made upon the defendant on the 10th day of November, 1916. Upon the 27th day of November, an extension in writing was obtained by the defendant to the 20th day of December, of time 'to answer, plead or make any motion. ' The New York Code of Civil Procedure provides, in section 487, as follows:

'The only pleading, on the part of the defendant, is either a demurrer or an answer.'

'Demurrer' includes objections to jurisdiction. But an objection to jurisdiction, which is not waived by proceeding with the action, may be raised at any time upon the face of the record, and other applications in the way of motions are possible, which are therefore usually covered, in New York practice, by the words 'answer, plead, or otherwise move.' This would include an application for further extension of time, which according to the court rule must be made upon two days' notice, unless it is ordered upon written stipulation.

Under the circumstances outlined above, the defendant waited until the last day of its extended time, viz. the 20th day of December, before seeking further extension. Failure to get in communication with the plaintiff's attorney compelled delay until the following morning, when the plaintiff's attorney stipulated that the defendant should have 20 days' further time to 'answer,' but struck out the words 'demur or otherwise plead.' This reinstated the defendant so far as the interposition of an answer was concerned and opened, to that extent, the default which had occurred upon the preceding day. But if such...