Bell v. Lycoming Insurance — 10 N.Y. Sup. Ct. 409

Majority

p. 409

IRA BELL, Appellant, v. THE LYCOMING INSURANCE COMPANY, Respondent.

Headnote

Bemovcd of causes to United States Oourrts—petition for—5y whom, many he signed.

A petition, filed by a corporation, for the removal of a cause to the United States Court, signed by its general agent in this State; and accompanied by an affidavit showing affirmatively his authority to act for the corporation, is sufficient.

Appeal from an order made at Special Term, removing this cause from the Supreme Court to the Circuit Court of the United States, under the act of congress of 1789.

Mr. Magone, for the appellant.

Richardson c& Adams, for the respondent.

The amount of the surety to be taken, is a matter in the discretion of the court to which the petition is presented. It could never

p. 410

be reviewed here, unless, perhaps, in some extraordinary case. In the present instance, the surety was a little less than the claim. As a general rule, it would seem just that it should equal the claim and accrued costs.

The petition was signed by the general agent of the company in this State; and it is objected that this is insufficient to constitute a petition by the defendant. If we look at the judicial act of the United States of 1789, we shall see that it was drawn with reference to those modes of practice, in which every step in a cause is taken in open court. The appearance, the filing of the petition, the offering of surety, and the acceptance by the court, are to be simultaneous. And, as this last act is one which requires the personal act of the judge, it is plain that all these acts were, in the minds of the framers of the law, to be done in term time. Our practice has rendered a modification necessary. The law is silent as to the manner of executing the petition. It does not, in terms, require a signature or a verification.

The object of the petition seems to be, to show that the defendant, at the first moment when he is authorized to take any step — that is, at the very time of appearance —■ claims the right to remove his cause. Now, upon the appearance of a defendant by an attorney, the attorney is authorized to represent the defendant. And where such an attorney files a petition in the name of the defendant, and presents it to the court, signed by one who is the general agent of the defendant, with an affidavit attached, showing affirmatively the authority of" that agent, it would be unreasonable to hold, as matter of law, that such a paper was not the petition of the defendant. Of course there might be eases of fraud or falsity; but nothing of that kind is pretended here. There is no suspicion that the petition was not filed and presented by the authority of the defendant. It was filed by its attorney in the case, as a part of his proceedings therein. And though it may be better in cases of this kind, that the petition should be executed by the principal officers of -the company, yet, after all, they are only agents of a higher position. In Vandevoort v. Palmer,^[1] the petition was signed only by the attorney in the action, and it was held to be sufficient.

* 4 Duer, 677 .

p. 411

However objectionable to plaintiffs this right of removal may be, still it is the law. I do not think that the State courts should try to defeat it by technicalities, where, in a proper ease and in due season, the defendant has insisted on his right.

The order appealed from should be affirmed, with ten dollars costs.

Present — Learned, P. J., and Boardman, J.

Order affirmed, with ten dollars costs.