The opinion of the court was delivered by: FORMAN
On March 3, 1958, Jacob Goldfarb commenced a suit against Richard H. Muller in the Law Division of the Superior Court of New Jersey, Monmouth County, alleging that because of the negligence of Muller an accident had occurred on March 16, 1956, in which Muller's automobile struck that of Goldfarb who seeks damages for personal injuries incurred thereby. Muller filed his answer on March 19, 1958. On July 11, 1958, he filed a third party complaint against John S. Davidson, the driver of a United States Postal Service truck, under the provisions of the New Jersey Joint Tortfeasors Act, N.J.S.A. 2A:53A-1 et seq., alleging that Davidson caused the accident, and claiming contribution from Davidson toward any judgment which might be entered against him in favor of Goldfarb.
On August 11, 1958, Davidson filed a petition to remove the case to this court by the United States Attorney.
On August 15, 1958, Davidson filed his answer to Muller's third party complaint. The answer alleges in part that Muller had administratively settled his claim with the United States Government for $ 94.50 and had accepted payment of that sum on July 7, 1958, thereby releasing the United States and Davidson from liability under the provisions of 28 U.S.C. 2672.
Davidson has moved for summary judgment or dismissal of the third party complaint on the ground of release.
The plaintiff Goldfarb has moved to sever the third party action of Muller against Davidson and to remand his case against Muller to the Law Division of the Superior Court.
Although not mentioned in the petition the United States Attorney has submitted in his brief that Davidson's petition to remove is based on § 1442(a) of Title 28 U.S.C., which is as follows:
' § 1442. Federal officers sued or prosecuted.
'(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
'(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
'(3) Any officer of the courts of the United States, for any Act under color of office or in the performance of his duties;
'(4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House.'
A reading of subsection (a)(1) makes it clear that the motion to remand should be denied only if Davidson was an officer of the United States, or a person acting under such officer under color of office at the time of the occurrences alleged in the third party complaint.
Section 1442 has been described as having
'* * * originated in 1833 during the 'nullification' controversy between the United States and South Carolina. Its purpose was to protect those charged with the enforcement of the federal revenue laws from prosecutions in state courts for violations of state law. See State of Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648, where its constitutionality was upheld. The section appears as Section 643 of the Revised Statutes and in 1875 was extended to include officers of either house of Congress while engaged in discharging their official duties. 18 Stat. 371, 401. In 1916 the section was amended and the removal ...