Vandevoort v. Palmer — 11 N.Y. Super. Ct. 677

Majority

p. 677

Vandevoort v. Palmer, Cook & Co.

Headnote

It is no objection to an application to remove a cause from a State Court into the Circuit Court of the United States, that the petition is not signed by the petitioner, nor that the bond is not signed by him, but is signed by sureties only.

When the action is against a firm, and is commenced by service on one only, if all the defendants are citizens of another state, and the plaintiff is a citizen of thi3 state, it is not necessary that any defendant should petition except, the one served, nor that the bond should be conditioned for-the appearance of any defendant, except the petitioner.

(Before Oaklet, Ch. J., Campbell, Boswortb, Hoffman and Slosson, J.J.)'

Oct. 26, 1855.

This is an appeal from an order of Mr. Justice Boswbrth, directing this action to.be removed into the Circuit Court of the United States, for the southern district of New York.

The action was commenced against Palmer, Cook & Co. as

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partners, by force of a summons on Palmer only. All of tbe defendants are citizens of California, and tbe plaintiff is a citizen .of Hew York. Tbe petition of Palmer, to.remove tbe action, was not signed or verified by him, but was signed by bis attorney, wbo appeared, at tbe time of filing, tbe petition. It was verified by an agent in fact. ' Tbe bond tendered was not signed by Palmer, but by sureties only, and was conditioned for bis appearance, and not for that of tbe other defendants, wbo bad not been served with process. Tbe motion was opposed on substantially tbe same grounds as are stated in tbe points of tbe plaintiff on tbis appeal.

S. P. Nash, for plaintiff and appellant,

argued tbe following points:

The defendants were sued as copartners, composing tbe firm of Palmer, Cook & Co., but only Palmer was served with tbe summons.

He applies to remove tbe case to tbe United States Circuit Court, on tbe ground that tbe defendants are citizens of California.

, I. Tbe appearance entered bere is by Palmer alone for bimself only, and the bond filed by him is conditioned only for his appearance in the United States Court. But the case cannot be removed unless all tbe defendants appear. (Law’s Practice, 145-6; Smith v. Rives, 2 Sumn. 838 , 347-355; Ward v. Arredondo, Paine, 410; Beardsley v. Torrey, 4'Wash. 286, 288; Suydo.ru v. Smith, 1 Denio, 263 ; Norten v. Mayes, 4 id. 245.)

n. Tbe petition was not signed by tbe petitioner, nor verified by him. It was signed by an attorney at law, as bis first act in the cause, and sworn to by a financial agent of Palmer, Cook & Co. Neither is tbe bond executed by him. Yide Roberts v. Car-rington, 2 Mall, 649.

The cause should therefore be retained.

M. Seeley, contra.

By the CoüRT.

The action is brought, or appears by tbe summons, against tbe firm of Palmer, Cook & Co., of California, of which firm Palmer alone was served with

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process. Palmer applied to one of the Justices of this court for an order removing the cause into the Circuit Court of the United States for the southern district of New York, on the ground that’ the plaintiff was a citizen of this state, and he and all the other defendants are citizens of the state of California. The order was granted and is now appealed from.

. The defendant Palmer, having been served with process, and the action being against the partnership firm of which he is a member, there is no difficulty in the way of the plaintiff proceeding to judgment under the statute of this state which authorizes judgments in such cases, which may bind the partnership property and the separate property of the partner served with process. This same remedy will remain to the plaintiff in the'Circuit Court of the United States. We see no reason why the action may not proceed there in the same manner as in this court. Other parties may be brought in if the plaintiff can serve them, or if not, the action may proceed against Palmer alona

Under this view of the ease we think the Justice had no discretion. When the proper application was made, and a satisfactory bond tendered, the cause was removed by operation of the act of Congress. The only defendant who had been served with process, the only one whom it was necessary to serve, the only one, perhaps, whom the plaintiff may wish to serve, if he were able to serve the others, was before the court by his petition, stating that the matter m controversy was one of five hundred dollars in value, and that the-plaintiff is a citizen of New York, and he, the defendant, as well as all the other defendants, are citizens of the state of California. It will be time enough under such circumstances to consider as to the wish or assent of the other defendants, to such removal'of the cause when they shall have been served with process and shall appear and make the objection.

It is sufficient that the petition is signed by an attorney of the court. The act of Congress does not require the petition to be signed by the petitioner himself. It is also sufficiently verified, and the bond is all that the act requires. The petitioner must give satisfactory security. He has done so, and, as previously remarked, the cause was removed without any order of the Justice. Virtually there was nothing to appeal from. We have thought that though it may not be necessary in all cases to make like

p. 680

orders for removals of causes, yet it is generally prudent and advisable to do so, as it is necessary at least to make an order approving of the security.

The order appealed from must be affirmed.