De Stefano v. Gregg

• Decision Date: 19 May 1938
• Citation: 24 F. Supp. 187
• Parties: DE STEFANO v. GREGG et al.
• Court: U.S. District Court — Southern District of New York

24 F. Supp. 187

DE STEFANO v. GREGG et al.

District Court, S. D. New York.

May 19, 1938.

Samuel R. Rosen, of Poughkeepsie, N. Y., for plaintiff.

Robinson, Hennessy & Weitzer, of New York City, for defendants Erie Freight Lines, Inc., and William Gregg.

LEIBELL, District Judge.

Plaintiff's motion to remand this action to the New York Supreme Court, Dutchess County, is granted.

The action was removed to this Court from the State Court, pursuant to a petition of one of the defendants, Erie Freight Lines, Inc., filed with the Clerk of Dutchess County on April 18, 1938. The petition alleged that the plaintiff administrator and the decedent were both residents of the City of Poughkeepsie, Dutchess County, State of New York, and that the defendant, Erie Freight Lines, Inc., is a corporation incorporated under the laws of the State of Indiana, having a principal place of business in Cleveland, Ohio, and is a non-resident of the State of New York.

The basis of the present application to remand is that one of the defendants, Leslie C. Roe, is a resident of the City of Poughkeepsie, Dutchess County, State of New York, and that there is not complete diversity of citizenship between the plaintiff and the defendants and that the complaint does not state a separable controversy. There are six defendants named in the summons. According to the complaint herein, William Gregg, one of the defendants, was the owner of a certain White motor truck; the defendant, J. Scaglione, was the owner of a certain Fruehauf semi-trailer; the White truck and its Fruehauf semi-trailer were operated, managed and controlled by the defendant, Erie Freight Lines, Inc. At the time of the accident alleged in the complaint, the White truck and its Fruehauf trailer were being operated on a public highway along the Albany Post Road in Putnam County, New York, in a southerly direction by two other defendants, Stanley Debro and/or Jerome Leonard. Either Debro or Leonard was driving the White truck to which the Fruehauf trailer was attached. The sixth defendant, Leslie C. Roe, at the time of the accident, was operating a Buick sedan in a northerly direction on said highway and plaintiff's decedent, Ralph DeStefano, was operating a Hupmobile sedan upon said highway.

Paragraph "8" of the complaint reads as follows: "8. On information and belief that on or about the 31st day of January, 1938 at about 2:15 a. m. while the White truck and Fruehauf trailer of the defendants William Gregg, J. Scaglione and Erie Freight Lines, Inc. was being operated by the defendants Stanley Debro and/or Jerome Leonard in a southerly direction over and along the Albany Post Road in Putnam County, New York, and while the defendant Leslie C. Roe was operating and driving his said Buick sedan northerly along said highway, the defendants, Stanley Debro and/or Jerome Leonard and Leslie C. Roe, so carelessly, recklessly and negligently operated, managed and controlled their said vehicles that they were caused to run into and collide with each other and as a result of said collision the White truck and Fruehauf semi-trailer struck the Hupmobile sedan which the decedent Ralph DeStefano, was lawfully operating in a northerly direction over and along said highway causing the said Ralph DeStefano to be severely injured, and which injuries resulted in his death."

In my opinion the complaint charges that it was the concurrent negligence of Debro or Leonard on the one hand operating the White truck with the Fruehauf trailer and of Leslie C. Roe on the other hand operating his Buick sedan that caused those two vehicles to collide, as a result of which the White truck with the Fruehauf semi-trailer struck the Hupmobile sedan of the decedent, Ralph DeStefano, causing him injuries from which he died.

In my opinion the complaint does not allege any separable controversy as against...