Opinion
May 15, 1925.
Appeal from Supreme Court of Kings County.
Sam L. Cohen [ Benjamin H. Margolies with him on the brief], for the appellant.
Israel I. Davidson, for the respondent.
Order declining to accept petition for the removal of action to the Federal court, and retaining jurisdiction, affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice LAZANSKY at Special Term.
KELLY, P.J., JAYCOX, MANNING, YOUNG and KAPPER, JJ., concur.
The following is the opinion delivered at Special Term:
Whether or not the action is removable to the Federal court is to be determined from the face of the record at the time the application is made. ( Crehore v. Ohio, etc., R. Co., 131 U.S. 240.) The State court is not concluded by the averments of the petition, but should consider the entire record, including the pleadings and proceedings. ( Southern Pac. Co. v. Waite, 279 Fed. 171; Miller v. Soule, 221 id. 493; Powers v. Chesapeake Ohio R. Co., 169 U.S. 92; Burlington, etc., R. Co. v. Dunn, 122 id. 513.) The practice here is not to file pleadings, and the only way of ascertaining the state of the record is by affidavit. (See Disbrow v. Driggs, 16 How. Pr. 346.) There is no dispute as to the facts. The complaint asking for $25,000 because of which a removal to the Federal court might be had, was served on February 9, 1925. The notice of removal was served February twenty-first, and returnable February twenty-sixth. The latter date may be deemed the time when the petition was filed or presented. On February twenty-fifth plaintiff served what is denominated an amended complaint, which, with other changes in the text, prayed for damages in the sum of $3,000. The amended complaint was returned to plaintiff by defendant by mail on the evening of the day it was received. The return of the amended complaint by defendant had no effect upon the service thereof. ( Hubert v. Apostoloff, 200 App. Div. 641.) Assuming that the changes in the complaint, including the reduction of amount, are not such as to warrant an amended complaint, the so-called amended complaint acted, at least, as a notice that plaintiff would only ask for $3,000 damages. By such notice plaintiff was bound. Therefore, by the amended complaint, if it be deemed such, or by notice through what was termed an amended complaint, the amount of damages sought is $3,000. Thus, according to the record, it appears that before and at the time the petition was filed the action was brought to recover the sum of $3,000. (See Mullin v. Blumenthal Co., 1 Penn. [Del.] 182; 39 A. 991; Waite v. Phoenix Ins. Co., 62 Fed. 769.) The jurisdiction of the State court continues.