General
ALLMARK v. PLATTE S. S. CO. (Limited)
76 F. 614·United States Circuit Court for the Eastern District of New York·1896
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Opinion
ALLMARK v. PLATTE S. S. CO. (Limited).
(Circuit Court, E. D. New York.
November 2, 1896.)
1; Removal of Causes — Extension of Time by Stipulation — New York , Practice.
Under the practice of the supreme court of New York, it seems that the time to answer may be extended by written stipulation, assented to by the judge, though not entered as an order of court; and the removal of a cause to a federal court is not too late if within the time fixed by such stipulation.
2. Same — Estoppel.
Even if this were otherwise, under such circumstances the plaintiff should not be heard to say, in the federal court, that time to answer had expired.
. This was an action by John Allmark against the Platte Steamship Company, Limited. The case was heard on a motion to remand to the state court, from which it had been removed.
Magner &- Hughes, for plaintiff.
Owen & Sturges, for defendant.
[MAJORITY — BENEDICT, District Judge.]
BENEDICT, District Judge.
This is a motion to remand the cause to the state court, on the ground that the removal to this court was too late. It appears that in the state court, on some application before the state court, it was stated by Mr. Sturges, the attorney, to the court, that the time to answer must be extended, to which it is said the judge assented. No order to extend the time was presented to the judge, or signed by him. On the next day, the plaintiff’s attorney signed a stipulation, extending the time to answer and to move, and, before the extension of the time to answer fixed by the stipulation had expired, the cause was removed to this court.
It seems to ine that, under the practice of the supreme court of this state, the time to answer did not expire until the date fixed by the stipulation, which was June 10th, and the removal before that date was in time. It has been so held by Judge Wallace. Winberg v. Lumber Co., 29 Fed. 721. But, if this were otherwise, I am of the opinion that, under the circumstances above stated, the plaintiff should not be heard in this court to say that the time to answer had expired. Motion to remand is denied.