Schultze v. Rodewald. other facts given in evidence that affected her credibility. Held, that plaintiff had not made out his case by satisfactory evidence, and so the finding was set aside as against weight of evidence. [The general term also relied upon another ground.] Carroll v. Charter Oak Ins. Co., 1 Abb. Ct. App. Dec. 316 (1868, opinion by MILLER, J.). B testified that he gave certain notice to defendant's agent. The agent testified to the contrary. The judge instructed the jury, that if they believed notice was given plaintiff should recover, and that B could not truly swear to the notice, unless he recollected it; and unless he did recollect it, he had committed perjury in swearing to the fact. Defendant excepted. Verdict for plaintiff. Held, no error. See further, Lawrence v. Maxwell, 58 Barb. 511; Anderson v. Collins, 6 Ala. 783; Johnson v. Whidden, 32 Me. 230; State v. Gates, 20 Mo. 400; Reeves v. Poindexter, 8 Jones, 308; Pridgen v. Walker, 40 Tex. 135; Jones v. State, 48 Geo. 163; Willey v. Gatling, 70 N. C. 410; Mathilde v. Levy, 24 La. Ann. 421; Carver v. Louthain, 38 Ind. 530; McAleer v. Horsey, 35 Md. 439; Jones v. McLuskey, 10 Ala. 27; Sullivan v. Collins, 18 lowa, 228; Delvee v. Boardman, 20 Iowa, 446. As to suspicion of perjury, from interest, compare Berckmans v. Berckmans, 17 N. J. Eq. 454; aff'g 16 Id. 122; and The Thames, 14 Wall. 106. SCHULTZE v. RODE WALD. N. Y. Supreme Ct., First Department; Chambers, October, 1876. SHAM ANSWER. A motion, once denied, cannot be renewed, even on fresh papers presenting further evidence, without leave. A verified answer of denial should not be stricken out as sham, even after defendant, on examination before trial, has admitted what the answer denies. Motion to strike out an answer as sham. In January, 1861, Henry Shultze, by letter, directed the defendants Henry Rodewald and Franz Kremelburg, who were owing him $2000, in case of his death before Schultze v. Rodewald. its payment, to pay over the same to his sister Dora Schultze. They wrote a letter in answer, admitting an indebtedness of $2000, and promising to pay it as soon as they could, to him, or in case of his death, to his said sister, with interest at six per cent. from the first of that month, to the date of payment. Henry Schultze afterwards transferred and delivered this acceptance for the value of love and affection, to Dora Schultze, the plaintiff. He afterwards died. A part of the amount due on the acceptance was paid, and this action was brought to enforce payment of the balance. The defendant in his answer, which was verified, denied any knowledge or information sufficient to form a belief as to Henry Schultze having transferred said acceptance to plaintiff, as alleged in the complaint, and added a general denial. Plaintiff moved to strike out the answer as sham; but the motion was denied by WESTBROOK, J., under the ruling in Thompson v. Erie R. R. Co., 45 N. Y. 468, without leave to renew the motion. Afterwards the defendant was examined as a party before trial, pursuant to section 391 of the Code, and on the examination admitted the truth of the allegations in the complaint. Plaintiff thereupon moved again to strike out the answer as sham. George W. Van Siclen, for the motion. George C. Genet, opposed. BARRETT, J.-Judge WESTBROOK did not grant leave to renew on fresh papers, nor has the plaintiff moved for leave to renew. She has simply moved a second time on fresh papers for what has been once denied. This cannot be done. Apart from that, there is as good reason to deny the motion on the merits now as there was before. The defendant is entitled to have his examination passed upon Leutze. Butterfield. by a jury. True, he admits what he seems to have denied; but in view of the court of appeals' decisions we cannot make a precedent for striking out general denials, whether specific or by ignorance. common law evidence before a jury. with $10 costs. No appeal was taken. There must be Motion denied, LEUTZE v. BUTTERFIELD. [Reversing decision at page 18 of this volume.] N. Y. Common Pleas; General Term, February, 1877. WHAT CAUSES MAY BE REMOVED TO UNITED STATES CIRCUIT COURT. Under the act of 1875,-allowing a removal of causes from the State courts to the United States circuit courts in certain cases, -an action in which there is a controversy between citizens of different States can be removed, even although, by reason of plaintiff being an assignee of one who was a citizen of the same State as defendant, the United States court could not have taken original cognizance of the action. Appeal from a judgment. The facts relative to the proceedings for removal are fully stated in the report at p. 18 of this vol. After removal was denied, the cause was tried by a referee; the proceedings by defendant to remove the ac tion were proved on the trial, and an exception taken to the refusal of the referee to find that this court had no jurisdiction in the premises. Judgment was rendered for plaintiff, from which defendant appealed. Leutze v. Butterfield. John Henry Hull, for the appellant. Edward D. McCarthy, for respondent. LARREMORE, J.-The first question for consideration is necessarily that of jurisdiction. Is this court the proper tribunal for the adjudication of the rights of the parties? This depends upon the construction given to the act of Congress passed March 3, 1875 (U. S. Statutes 1875, chap. 137), entitled "An Act to determine the jurisdiction of circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes." This act repeals all parts of foregoing acts inconsistent with or repugnant thereto; and if defendant has complied with its provisions, then the trial of this action by the referee, and all proceedings subsequent thereto, were coram non judice. By this act (§ 1) the circuit court is given original cognizance of all suits of a civil nature when the matter in dispute exceeds $500, in which there shall be a controversy between citizens of different States, &c. But said court shall not have cognizance of any suit founded on contract in favor of an assignee, unless such suit might have been prosecuted in said court if no assignment had been made, except in cases of negotiable paper. Section 2 provides that any suit of a civil nature at law or in equity now pending or hereafter brought in any State court, when the matter in dispute exceeds $500, and in which there shall be a controversy between citizens of different States, may be removed by either party into the circuit court of the United States for the proper district.* It is conceded that plaintiff could not have commenced this action in the circuit court, for, as assignee of a claim other than negotiable paper, the limitation of section 1 would apply, and the court could not have cognizance of any such suit. Is this limitation applicable to actions sought to * See the section stated at length at p. 22 of this vol. Leutze v. Butterfield. be removed from the State courts? The learned judge who denied the application for removal held the affirmative of this proposition (1 Abbott's New Cases, 18). The intention of the Federal Legislature in this respect is not clearly expressed in the act itself. But section 2 gives a defendant the right to remove any suit without distinction as to the character in which the plaintiff sues, except that the parties to the controversy must be citizens of different States. The defendant was entitled as a matter of right to a change of forum (Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Holden v. Putnam Fire Ins. Co., 46 N. Y. 1; Ayres v. Western R. R. Cor., 45 Id. 260; Bell v. Dix, 49 Id. 232; Kanouse v. Martin, 15 How. U. S. 198; Gorden v. Longest, 16 Pet. 104); unless such right is controlled by the limitation above referred to, and that question should have been raised and decided in the circuit court (Bell v. Dix, supra; Gaines v. Fuentes, 92 U. S. [2 Otto] 10).* It involves the construction of a statute of the United States as to the jurisdiction of a Federal court, and should have been referred to that tribunal for adjudication. Defendant's application met all the requirements of the act of March 3, 1875, and a stay was thus imposed upon. all further proceedings in this court. The defendant might have availed himself of the authority and direction of the substituted tribunal at an earlier stage of the action, and thus have avoided the expense and delay of a fruitless litigation; but the cases above cited hold that the proceedings in this court are not a waiver to the objection to jurisdiction. The judgment appealed from should be reversed. ROBINSON, J.-The eleventh section of the judiciary act of Congress passed September 24th, 1789, conferred original jurisdiction on circuit courts of all suits of a * See p. 25 of this vol. VOL. I.-24 |