Von Herwarth v. Gristede Bros.
| Decision Date | 06 October 1937 |
| Citation | 20 F. Supp. 911 |
| Parties | VON HERWARTH v. GRISTEDE BROS., Inc., et al. |
| Court | U.S. District Court — Southern District of New York |
Smyth & Tuttle, of New York City, for plaintiff.
William E. Lowther, of New York City, for defendant Gristede Bros., Inc.
Jerome Kidder, of New York City, for impleaded defendant Armour & Co. COXE, District Judge.
This is a motion by the plaintiff to remand the action to the state court. The suit as originally commenced was against Gristede Bros., Inc., retail grocers in New York City, as the sole defendant, to recover damages for personal injuries alleged to have been sustained in eating unwholesome meat purchased from the defendant. The complaint charges both breach of warranty and negligence. The plaintiff is a resident and citizen of New York, and Gristede Bros., Inc., is a New York corporation.
In the state court, Gristede Bros., Inc., impleaded Armour & Co., an Illinois corporation, under section 193, subd. 2, of the New York Civil Practice Act, on the ground that the meat in question was supplied to Gristede Bros., Inc., by Armour & Co., and, further, that there would be a liability over to Gristede Bros., Inc., in the event that the plaintiff succeeded in the main action. This resulted in the issuance of a supplemental summons adding Armour & Co. as an additional defendant; and Armour & Co. thereupon removed the action to this court on the ground of diverse citizenship and the asserted existence of a separable controversy.
The removal statute (U.S.C.A. title 28, § 71) provides that, "when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them," the suit may be removed into the District Court for the proper district. And it is settled law in the construction of this section that the removal of a separable controversy brings the entire suit to this court for determination. Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; Gainesville v. Brown-Crummer, 277 U.S. 54, 48 S.Ct. 454, 72 L.Ed. 781. But is there a separable controversy between Gristede Bros., Inc., and Armour & Co. "which can be fully determined as between them"? I think not. The plaintiff has sued Gristede Bros., Inc., for damages for breach of warranty and negligence; he had no relations whatever with Armour & Co., makes no claim against it, and is utterly indifferent to any controversy between it and Gristede Bros., Inc. Under the liberal practice permitted...
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Nelson v. Camp Mfg. Co.
...plaintiff and the defendant Camp Manufacturing Company, the alleged wrongdoer. In this connection the case of Von Herwarth v. Gristede Bros. et al., D.C., 20 F. Supp. 911, 912, is applicable. There the plaintiff and the original defendant were residents of the State of New York, in a court ......
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Brown v. Hecht Co.
...worded Texas procedural statute. But on the other hand, in a later case in the Southern District of New York, Von Herwarth v. Gristede, D.C., 20 F.Supp. 911, 912, District Judge Coxe disagreed with that view in a similar procedural situation, holding that there was no separable controversy ......
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Manternach v. Jones County Farm Service Company
...Service, D.C.1935, 10 F.Supp. 898 (removal upheld); Ellis v. Peak, D.C. 1938, 22 F.Supp. 908 (removal upheld); Von Herwarth v. Gristede Bros., D.C. 1937, 20 F.Supp. 911 (remanded); Panzer v. Lyons Cafeterias, D.C.1937, 21 F. Supp. 263 (remanded); Nelson v. Camp Mfg. Co., D.C.1942, 44 F.Supp......
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McMahon v. City of Troy
...cases even under the old statute very persuasive in their reasoning that are opposed to the position of Aetna here. Von Herwarth v. Gristede Bros., D.C., 20 F.Supp. 911, which disagreed with the decision in Gillette, supra; Panzer v. Lyons Cafeterias, D.C., 21 F.Supp. 263. Professor Moore, ......