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Kerille v. Phœnix Life Insurance

3 Thomp. & Cook 788 Court N.Y. Gen. Term English

Delivered by Mullin, P. J.,

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p. 788
Kerille v. Phœnix Life Insurance Company, appellant.

Headnote

Practice—transfer' of cause from State to Federal court. '
The defendant in an action in a State court is not entitled to an order removing the cause to a Federal court, under the judiciary act of 1789, § 12, unless the appearance in the action is entered at the same time that the petition for the removal is filed. And where the entry of appearance was made on the day following that on which the petition was filed, held, that the order must he denied.
Appeal from an order of the special term denying a motion made on the part of the defendant to remove this cause from the supreme court of this State to the circuit court of the Hnited States. The plaintiff is a citizen of this State, the defendant a corporation created by the laws of Connecticut, and located and doing business in that State. The action was brought to recover the amount alleged to be due to the plaintiff from the defendant on a policy insuring the life of the plaintiff’s husband.
The summons and complaint were served August 5, 1873. On August 21st, defendant’s counsel filed the petition required by the' judiciary act, except that it did not conform 'thereto in'two particulars. On the 21st or 22d óf August, notice of appearance for the purposes of the motion to remove was" served, and the defendant’s appearance was, by plaintiff’s attorneys, caused to be entered as of August 22. The motion to remove was denied by reason of a defect
p. 789
of the petition, with leave to renew, and the motion was renewed upon an amended petition, and again denied. From the order denying it this appeal was taken.

“ By the twelfth section of the judiciary act, the defendant’s appearance in the action must be entered at the same time that the petition is filed, they must be concurrent acts, and if they are not done concurrently, the defendant is not entitled to an order of removal. Conkling’s Tr. 476 ; Redmond v. Russell, 12 Johns. 153 .

If serving notice of retainer is equivalent to the entry of appearance, it was not served until the 22d, the next day after the petition was filed. If the actual entry of an appearance was essential, it was not entered until the 22d, and was too late to be in compliance with the statute. The order of the special term must be affirmed, with $10 costs.”

Order affirmed.

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