Wmaemz v. Brsuor. 49
‘ Wnssmn v. Bisnor and another.
(Oircuit Oourt, N. D. New York. 1882.)
Rmsovu. or CAusn—Com>m·o¤s nv Bonn.
It is essential that the bond contain a provision for the payment of costs, and
the objection that it does not may be taken at any time. ' . _
James Wood, for motion. i ,
George Truesdale, opposed. .
Coxn, D. J. This action was commenced in the supreme court of
the state of New York. In June last, proceedings to remove it into
this court were taken. This motion is to compel the treasurer of
Monroe county to pay to the plaintilf the sum-of $250, depositedas A
security for defendants’ costs, pursuant to an order of the state court.
Opposition is made solely on the ground that the cause was not prop-
erly removed. Various alleged irregularities are pointed out, only
one of which will be considered. The bond filed with the petition
of removal in the state court was drawn pursuant to section 639 of
the Revised Statutes; itdoes not contain the provision as to costs
required by section 3 of the act of 1875.
The defendants contend that this is a fatal omission, aifecting the I
jurisdiction of this court; that it is not a mere irregularity, or a
defect that can be cured by amendment. l
The case of Torrey v. Grant Works, 14 Blatchf. 269, clearly sus- .
tains this view. In his opinion Judge Blatchford says, at page 270: -
“ The limitation of time within which the petition may be filed, and the
fact that, under section 639, it may be tiled at a later period than it can be
under the act of 1875, has nothing to do with the character of the bond. The
present suit is one which falls within the provisions of section 3 of the act of .
1875, in regard to the terms of the bond required. It is a suit at law of a ' 1
civil nature, brought in a state court, in August, 1875. The, matter in dis-
_ puts exceeds, exclusive of costs, the sum or value of $500, and it is a suit in I
which there is a controversy between citizens of different states. It is, there-
fore, asuit mentioned in section 2 of the act of 1875, Blld one of the parties to
it has undertaken to remove it by tiling his petition for removal in the state
court. He may be in time, because within the time limited by subdivision 3
of section 639, although not within the time limited by section 3 of the act of
1875; but, even if he claims the benefit of the longer time allowed by section A
639, he must give the bond prescribed by the act of 1875. He has not given l
such a bond. The bond he filed containedno provision for costs."
The learned judge further held, following a decision of Judges
McKennon and Cadwalader, (9 Chi. Leg. News, 324,) that the require- J
v.13,no.2—4