Republic Fire Insurance v. Keogh — 30 N.Y. Sup. Ct. 644

Majority

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THE REPUBLIC FIRE INSURANCE COMPANY, Appellant, v. THOMAS B. KEOGH, Respondent, Impleaded, etc., and THE BANK OF NEW HANOVER and others, Defendants and AppellantTHE GERMANIA FIRE INSURANCE COMPANY, Appellant, v. THE SAME, Respondent. THE NIAGARA FIRE INSURANCE COMPANY, Appellant, v. THE SAME, Respondent. THE HANOVER FIRE INSURANCE COMPANY, Appellant, v. THE SAME, Respondent.

Headnote

Aotion of interpleader — when it cannot be removed into the United States courts.

This action was brought by an insurance company to compel persons who had recovered a judgment against it, to interplead with others who claimed to be assignees of or to have acquired liens upon the said judgment. The plaintiff, the judgment-creditors and all of the defendants except two, were residents of this State.

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Held, that the action could not, upon the petition of one of the non-resident defendants, he removed to the United States District Court under the act of congress passed in 1875. (Sec. 2 of chap. 189.)

Appeals from orders entered at Special Term, granting motions' made by tbe respondent to remove tbe actions to tbe Circuit Court of the United States for tbe Southern District of New York

Tbe actions, wbicb were all of tbe same nature, were brought to compel an interpleader, and grew out of tbe following facts:

In tbe month of February, 1880, certain actions brought in this court by tbe defendants Brink and Estes against tbe Republic, Ger-mania, Niagara and Hanover Fire Insurance Companies were finally terminated. After long litigation the Court of Appeals affirmed tbe judgments of the Supreme Court in favor of tbe plaintiffs.

It appears from tbe pleadings that, pending tbe litigations, tbe defendant Brink assigned bis interest in tbe causes of action to tbe defendant Tbe Bank of New Hanover, a citizen of North Carolina; and tbe defendant Estes assigned bis interest to tbe defendants Williams and Black. Tbe defendants Blossom, Keogh (a citizen of North Carolina) and Van Volkenburg respectively commenced actions in this court against tbe defendant Estes, and caused warrants of attachment to issue by virtue whereof tbe defendants O’Brien, late sheriff, Reilly, late sheriff, and Bowe, sheriff, levied upon Estes’ interest in tbe causes of action referred to. Tbe defendants Hatch and McDonald were tbe attorneys for Brink and Estes in tbe original actions, and a controversy arose between them and their clients as to tbe amount of their fees, and notices were served by them and their clients on tbe companies not to pay over tbe fund to tbe other.

In October, 1880, the defendant Keogh filed a petition and bond with tbe court to remove tbe actions into the United States Circuit Court for tbe Southern Distinct of New York, and obtained an order removing said actions unless tbe other parties to the actions showed cause, at an appointed time, why they should not be removed. On tbe return day of tbe order to show cause, tbe motion was argued and afterward decided by tbe learned justice, who made an order removing tbe actions on tbe ground that they involved a controversy wbicb was wholly between citizens of different States and wbicb could be fully determined as between them,

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Geo. W. Cotter ill, for the plaintiffs, appellants

I. H. Arnold, Jr., for the defendants, appellants, the Bank of New Hanover and Williams, Black & Williams.

Chamberlain, Carter <& Eaton, for the respondent.

We do not think that a ease was made for the removal of these actions. It does not fall within section 2 of chapter 139 of the act of congress passed March 3, 1815, for the reason that the essential controversy is between the plaintiffs and the defendants, and the latter are not all citizens of different States from the former. The actions are in the nature of interpleaders, and the main question to be determined is, whether the suits are rightly brought. That is the primary issue upon the pleadings. The rights of the co-defendants, as between each other, may never become a subject of adjudication in these actions. There is, in fact, no present controversy in the actions as between these co-defendants. The only existing issue is the direct one, between the plaintiffs and defendants, namely, whether the plaintiffs are entitled to relief by way of interpleader ?

The court may ultimately dismiss the complaints. It may find that the facts averred are not proved, or it may hold, as matter of law upon the conceded or established facts, that a case for an inter-pleader has not been made out. If, however, the right to an inter-pleader be sustained, the court may then direct an issue as between these co-defendants. Until such time has arrived, there cannot be said to be any controversy except as to the plaintiff’s right. But even as between the co-defendants it is apparent upon the papers, that whatever controversy may ultimately arise will be mainly between citizens of the same State.

There may possibly be a single controversy between citizens of different States; but such controversy will be incidental.

It is not within the spirit of the act of removal to permit such actions as these, with their numerous parties and conflicting interests, to be earned into the Federal forum, merely because a single incidental issue may arise between two of the defendants who are citizens of different States. As it appeared upon the face of the

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papers that the causes were not within the removal act, the court had no power to make the order. For that reason such order is appealable, and the appellants were not bound to apply to the Circuit Court of the United States to remand the causes.

The orders should be reversed, with ten dollars costs and disbursements in each case, and the motions denied.

Davis, P. J., and Brady, J., concurred.

So ordered.