moreover, a controversy between citizens of different states and as such would have been within the original jurisdiction of this court. Consequently, the removal of this cause was proper and the motion for remand must be denied. President and Directors, etc. v. Monogram Associates, D.C.E.D.N.Y.1949, 81 F.Supp. 739.
The court is aware of the view of Professor Moore in his Commentary on the U.S. Judicial Code, p. 252, wherein it is stated that 'we do not believe that any claim introduced into the action by counterclaim, cross-claim, third-party claim intervention or garnishment should afford the basis for removal.' It has also considered the case of Sequoyah Feed & Supply Co. Inc. v. Robinson, D.C.W.D.Ark.1951, 101 F.Supp. 680, which followed Professor Moore's reasoning. Yet it would not seem consonant with the intent of Congress that the right to have a cause tried before a federal tribunal should be made to depend on the fortuitous nature of the laws of a state relating to third party practice. As the Supreme Court said in Shamrock Oil & Gas Corp. v. Sheets, 1941, 313 U.S. 100 at page 104, 61 S. Ct. 868 at page 870, 85 L. Ed. 1214, 'The removal statute which is nation-wide in its operation, was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied. Hence the Act of Congress must be construed as setting up its own criteria, irrespective of local law, for determining in what instances suits are to be removed from the state to the federal courts.'
If the removal statute is to be uniform in its application, construction should not depend on the procedures of a particular state respecting third party practice. Had New Jersey practice not permitted third party joinder, McKesson & Robbins, Inc. might have been brought into the courts of that state on the cause here in issue between it and third party plaintiffs as an ordinary defendant, instead of as a third party defendant, as in this case. Had this occurred, its right to remove could not have been questioned. It does not seem to this court that the right of removal may be defeated by a procedure made possible by local law, as would appear to be the effect of Professor Moore's dictum and the opinion in the Sequoyah case.
The initial suit between plaintiff and third party plaintiffs herein was properly brought in the state court. Since this court has indicated that that cause and the third party issue are separate and distinct, the motion to remand will be granted with respect to the controversy between Industrial Lithographic Co. Inc., plaintiff, and Louis H. Mendelsohn, et al., third party plaintiffs herein. The motion to remand the third party claim, as stated above, is denied and this court retains jurisdiction of that cause.
Let an order be submitted in conformity with the above.
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