Ayres v. . the Western Railroad Cor.

Folq-eb, J. On this appeal, this court may review the determination of the General Term upon the demurrer of the plaintiff to the second answer of the defendant. It was an intermediate order, involving the merits and necessarily affecting the judgment. (Code, § 11, 1.) The second answer was good in form, its allegations were sufficient to permit proof of all the facts essential to make out the defence set up. It was good in substance also, and alleged a valid defence unless it was obnoxious to the limitation of the jurisdiction of the District and Circuit Courts of the United States, contained in the eleventh section of the judiciary act. (1 U. S. Stat. at Large, p. 78, § 11.) Upon such a question, the authority of decisions in the Federal courts, is paramount. If it is there clearly and definitely held, that in a case where a defendant has taken the necessary steps in accordance with the statute to remove the cause to the United States Court, jurisdiction of the action cannot be retained in the State Court by virtue of the limitation above adverted to, the question is settled for us. In Bushnell v. Kennedy (9 Wallace, 387); it is held, Chase, Ch., J., delivering the opinion of the court, that any defendant being a citizen of another State than the plaintiff, is entitled, upon application at the proper time, to have his cause removed to a Circuit Court of the United States, and that the restriction of the eleventh section, not being found in the twelfth section, and the reason for it not existing, the defendant is not retarded by it, in the exercise of his right to change the jurisdiction of the action. In this opinion all the judges concurred. It is not necessary that we reiterate the reasons there given. *265 It follows that the judgment of the court below be reversed. Peckham, J., having been a member of court below did not sit. Grover, J., did not vote. All the other judges concurring, judgment reversed without costs, the cause being removed to the Circuit Court before issue, and. the court below having no jurisdiction. Note.—The doctrine, that on an appeal from a judgment obtained upon the trial of issues of fact, the orders sustaining or overruling demurrers to the pleadings, are to be reviewed, stated in its broad extent does not seem entirely in harmony with the opinion of the court in Derpuy v. Strong (37 N. T., 372); where it was held, that upon appeal from a judgment in trespass upon a verdict on an issue of fact, where the defendant had interposed a demurrer to the complaint, which had been wrongfully overruled at Special and General Terms, this court could not correct that error.—Rep.