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George Weston Ltd. v. New York Central Railroad Co.

Decided: October 9, 1935.

GEORGE WESTON, LIMITED, PLAINTIFF,
v.
NEW YORK CENTRAL RAILROAD COMPANY, A BODY CORPORATE OF THE STATE OF NEW YORK, AND IN THE ALTERNATIVE, WEST SHORE RAILROAD COMPANY, LIKEWISE A BODY CORPORATE OF THE STATE OF NEW YORK, DEFENDANTS



On petition of defendants for order removing cause to the United States District Court for the district of New Jersey.

For the plaintiff, Benjamin M. Taub.

For the defendant, Wall, Haight, Carey & Hartpence.

Before Justice Heher, at the Passaic Circuit.

Heher

HEHER, J. This application is grounded upon a claimed diversity of citizenship requisite to confer jurisdiction upon the Federal District Court. The action sounds in tort. Its object is the recovery of the value of a motor truck demolished in a grade crossing collision. The complaint recites that plaintiff is a "corporation having its principal office in the city of Passaic, county of Passaic and State of New Jersey." There is no further allegation respecting the place of its origin or habitat. The ad damnum clause asserts the consequent damage to have been $5,000.

By joint verified petition, seasonably presented, the defendants set forth, inter alia, that they were, at the time of the institution of this action, and now are, bodies corporate organized under the laws of the State of New York, and "citizens and residents of said state," and not of the State of New Jersey; that the matter in controversy exceeds the sum of $3,000, exclusive of interest and costs; and that the plaintiff "was and now is a corporation organized under the laws of the State of New Jersey, having its principal office and place of business in the City of Passaic, county of Passaic, in said state, and was and now is a resident and citizen of said state;" and prayed acceptance of a bond in the statutory form, tendered therewith, and the removal of the action into the Federal District Court for the district of New Jersey, and the termination of all proceedings in this court.

The matter came on for hearing, on notice; and the plaintiff asked and was granted leave to amend the complaint to incorporate therein the allegations that it was a foreign corporation organized and existing under and by virtue of the laws of the Dominion of Canada, authorized to do business in the State of New Jersey in virtue of a certificate filed with our secretary of state, and that its principal office in this state was located in the city of Passaic, and to state the damage ensuing from defendants' alleged wrongdoing to have been the sum of $2,000. It seems to be a fact that the value of the

demolished vehicle was less than that sum, and that this alone is the measure of plaintiff's damage, if liability be established. Thereupon defendants presented a verified "supplement" to their petition for removal, setting forth these amendments to the complaint, and "renewing" their application for removal of the cause on the ground of diverse citizenship.

Plaintiff maintains that, inasmuch as it is a corporation of alien origin and existence, there is not that diversity of citizenship prescribed by the removal act as a prerequisite to jurisdiction in the Federal District Court. This contention is not well-founded.

Section 28 of the Federal Judicial Code ordains that any suit of a civil nature, at law or in equity, other than those arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, "of which the District Courts of the United States are given jurisdiction, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state." 28 U.S.C.A., § 71. Original jurisdiction is conferred by article III, section II, clause I, of the federal constitution, and by section 24 (1) of the judicial code enacted in the exercise of the constitutional power. The constitution provides that the judicial power shall extend, inter alia, to controversies between "citizens of different states; * * * and between a state, or the citizens thereof, and foreign states, citizens or subjects." The statute vests in the Federal District Courts jurisdiction of all suits of a civil nature, at common law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000, "and (a) arises under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or (b) is between citizens of different states, or (c) is between citizens of a state and foreign states, citizens or subjects." 28 U.S.C.A., § 41 (1).

It is clear that the case in hand does not fall within subdivision (b). King v. Cornell, 106 U.S. 395; 1 S. Ct. 312; 27 L. Ed. 60. But, regarding the plaintiff as an alien corporation, there is ...


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