INSURANCE COMPANY v. PECHNER.

ERROR to the Court of Appeals of the State of New York.

On the 1st of June, 1867, Pechner sued the Phoenix Insurance Company, a Connecticut corporation, in the Supreme Court of Chemung County, in the State of New York, upon a policy of insurance. On the 8th of the following month, and at the time of entering its appearance, the company presented to the court a petition, accomp nied by the necessary security, for the removal of the cause to the Circuit Court of the United States. The petition, when taken in connection with the pleadings, set forth sufficiently the citizenship of the defendant in the State of Connecticut; but as to the citizenship of the plaintiff, the statement was, that, 'as your petitioner is informed and believes, Isidor Pechner, the plaintiff in said action, is a citizen of the State of New York.' The petition bears date June 11, 1867, and was sworn to the next day. Upon its presentation the court approved the security, but denied the application for removal.

On the 5th of June, 1869, the plaintiff filed an amended complaint, to which the defendant answered June 21, 1869. On the 2d of February, 1872, the cause coming on for trial, the defendant again presented its original petition for removal, which remained upon the files, and requested the court to proceed no further with the trial; but this request was denied, for the reason that the petition did not state facts sufficient to remove the cause. A jury was thereupon called, which returned a verdict in favor of the plaintiff, and judgment was in due form entered thereon against the defendant. The case was then taken to the Court of Appeals, where the judgment was affirmed, and the petition for removal held to be insufficient in law to effect a transfer of the cause, for the reason that it did not state affirmatively that Pechner was a citizen of the State of New York when the suit was commenced.

To reverse this judgment the present writ of error has been brought by the company, and the only error assigned is grounded upon this decision.

Mr. W. F. Cogswell for the plaintiff in error.

The plaintiff in error having taken the necessary steps to remove the action from the State to the Federal court, and the former having refused its application in that behalf, the judgment subsequently rendered is reviewable in this court, notwithstanding a defence of the action on the merits. Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 15 How. 198.

The compliance with the conditions of the act of Congress ousted the Supreme Court of New York of its jurisdiction, and all further proceedings therein were void. 1 Stat. 79, sect. 12. Stevens v. Phoenix Insurance Co., 41 N. Y. 149; Gordon v. Longest, supra; Kanouse v. Martin, supra.

Nor can the decision below be sustained by the verbal criticism of the Court of Appeals. Ladd v. Tudor, 3 Woodb. & M. 325; People v. City of Chicago, 34 Ill. 356; Sweeney v. Coffin, 1 Dill. 73; Shepard v. Graves, 14 How. 505.

The petition following the language of the act of Congress is sufficient, and this is shown especially by the uniform practice in the Federal courts under the next preceding section of the same statute. Bingham v. Cabot et al., 3 Dall. 382; Abercrombic v. Dupuis, 1 Cranch, 342; Piquignot v. Pennsylvania Railroad Co., 16 How. 104.

Although, in nearly all the States of the Union, for many years the only method by which a suit could be commenced was by some process the service and return of which preceded the filing of the declaration, the language of the declaration has been uniformly in the present tense. Mollan v. Torrence, 9 Wheat. 537; Marshall v. Baltimore & Ohio Railroad Co., 16 How. 314; Lafayette Insurance Co. v. French et al., 18 id. 404.

Mr. J. Hubley Ashton, and Mr. Nathaniel Wilson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.