Griffin White Shoe Co. v. O'Connor & Goldberg

GARVIN, District Judge. [1, 2] By special appearance defendant questions the service of summons herein. The action was brought in the New York Supreme Court, Kings county. The defendant is a foreign corporation, and was served in the Southern district of New York. After the action was begun, it was duly removed to this court by petition, and upon a bond having been filed, approved by a justice of the New York Supreme Court. I have been referred to two decisions, both made within this circuit by District Judges. Wange v. Public Service Ry Co. (C. C.) 159 Fed. 189, and Centaur Motor Co. v. Eccleston (D. C.) 264 Fed. 852. Although the earlier decision was made in this district, the fact that it was not followed in the same circuit by a later case justifies me, I think, in holding that, where an early decision in this district by a District Judge has not been followed, it is not binding upon me, as would be a decision of the Circuit Court of Appeals. I have reached this conclusion after some hesitation having in mind the importance of harmony and consistency in judicial decisions, certainly within the same district, and only because the reasoning of the later case is to me more persuasive. Motion to set aside service denied.