HODGKINS against HAYES

HODGKINS against HAYES. New York Common Pleas; Special Term, January, 1869. Removal oe Causes. The provision of the act of Congress of July 27, 1866 (14 TT. 8. Stat. at L., 307),—allowing certain causes to be removed from State courts to the courts of the United States,—is to be construed as applying only to actions in which there is but one defendant who is a non-resident, and who is restrained by injunction or other process, and to cases in which there is a non-resident defendant joined with others who are residents, and it clearly appears that a final determination of the action can be had as to such non-resident, after removal, without the other defendants. Petition for removal. This action was brought by James B. Hodgkins against Thomas B. Hayes and others. The language of the clause of the act relied on is as follows: “That, if in any suit already commenced, or that may hereafter be commenced, in any State court against an alien, or by a citizen of the State in which the suit is brought against a citizen of another State, and the matter in dispute exceeds the sum of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, a citizen of the State in which the suit is brought is or shall be a defendant, and if the suit so far as relates to the alien defendant or to the defendant who is the citizen of a State other than that in which the suit is brought, is or has been instituted or prosecuted for the purpose of restraining or enjoining him, or if the suit is one in which there can be a final determination of the controversy, so far as it concerns him, without the presence of the other defendants as parties in the cause, then and in every such case the alien defendant, or the defendant who is a citizen of a State other than that in which the suit is brought, may, at any time before the trial or final hearing of the cause, file a petition for the removal of the cause as against him into the next circuit court of the United States.” .... See Cooke v. State National Bank, 1 Lans, 494. [MAJORITY — Beady, J.] Beady, J. The act of Congress passed July 27, 1866, in reference to the removal of actions from the State to the Federal courts, is very comprehensive but peculiar in its terms. It is so broad in its' provisions, a feature doubtless occasioned by the unsettled condition of some parts of the republic, that it should be subjected to close scrutiny, and applied with great care in this State, where the courts are equal to all the emergencies that may arise, for the protection of the citizen and the ample administration of justice. Guided by such a rule of construction, I think it should be held that it applies only to actions in which there is but one defendant who is a non-resident, and who is restrained by injunction or other process, and to cases in which there is a non-resident defendant joined with others who are residents, as to whom it clearly and unquestionably appears that a final determination of the action, and the issues and rights involved therein, can be had, after its removal, without the presence of the other defendants. It does not thus clearly appear in this case, as to the defendant who applies for the removal. The act contemplates a case, not where there can be a final determination witnout the presence of the party who is a non-resident, but a final determination as to such party without the' presence of the other defendants. This case does not present the combination of concurring elements which is required, and is therefore not within the statute. Motion denied.