Rhode Island Horse Shoe Co. v. Goodenough Horse Shoe Co. under the act of 1875, to effect a removal of a cause to the United States circuit court, must be presented to the court, and upon notice to the adverse party. Filing them with the clerk is not enough.* The Rhode Island Horse Shoe Company brought an action in this court against the Goodenough Horse Shoe Manufacturing Company, for goods sold and delivered. Defendant, during the sessions of the court, filed with the county clerk a petition and bond for the removal of the cause to the United States circuit court, on the ground that the plaintiff was a corporation of another State, and relied on this, of which he gave information to plaintiff's attorney, as effecting a removal of the cause, under the act of 1875, p. 22, below.† Plaintiffs' disregarded the removal claimed, and, in due time, entered judgment by default. Defendants now moved to vacate the judgment, because entered after a removal had been effected. Starr & Ruggles, for defendant. Tracey, Olmsted & Tracey, for plaintiff. BARRETT, J.-The petition and bond should have been filed in the supreme court, and not in the office * It was held in Osgood v. Chicago, &c., R. R. Co., 2 Cent. L. J. 284, that the petition and bond may, in vacation, be filed with the clerk of the State court; and thereupon the right to removal becomes complete without action by the State court. It is for the Federal court to determine if the grounds of removal exist. But whether the State court is deprived of jurisdiction until the Federal court acquires it, by filing the record with the latter,-Query. See First National Bank v. Kings Co., Id. 505, 616, note. + By Art. VI., § 20, of the Constitution, the county clerk in each county is clerk of the supreme court. There is a deputy or assistant in attendance upon each branch of the court, with whom papers in proceedings in such branch are delivered for filing. Rhode Island Horse Shoe Co. v. Goodenough Horse Shoe Co. of the county clerk. The county clerk is ex officio the clerk of the supreme court in this county, but his office is not the supreme court. Then the court has a duty to perform, viz., to accept the petition and bond and proceed no further in the suit. This duty cannot be performed by the county clerk-the statute imposes it upon the court. Further, the bond must be with "good and sufficient surety." It is such a bond, and such a bond only, that the court is required to accept. It is for the court, and not for the clerk, to accept a bond with good and sufficient surety. This construction is the only reasonable one. In this county there is no vacation such as would prevent a party from presenting his petition and bond to the court. The special term is in session every day in the year, except Sundays and legal holidays. It would be contrary to precedent, and subversive of the orderly administration of justice, to permit any serious step in a cause without notice to the party to be affected. The act should be read in the light of this just principle. Then consider the effect of the opposite construction. The claim here is that the mere filing of the petition and bond in the clerk's office, without notice to the plaintiff (that given him being a mere act of courtesy), worked a removal, and this although the court was in session at the time. In other words, that a plaintiff who brings a suit in our courts may, in complete ignorance of the removal, proceed to judgment and execution only to find himself a trespasser. If Congress meant this, the language should have been so precise and specific that no other construction could possibly be put upon it. The motion must be denied. with ten dollars costs. Bright v. Milwaukee, &c. R. R. Co. BRIGHT ». THE MILWAUKEE, &c. R. R. CO. N. Y. Supreme Court, First Department; Special Term, November, 1876. TIME FOR FILING PETITION TO REMOVE CAUSE. A default on an issue of law raised by a demurrer is a trial within the meaning of the act of Congress of 1875, as to removal of causes, and precludes a removal. If a cause is at issue, and might have been put in a condition for trial by plaintiff putting it on the calendar and noticing it, he can not, although prevented from doing so by injunction, have it afterwards removed under the act of 1875. In a proper case, the court may impose the payment of an extra allowance in addition to costs, as a condition of allowing a discontinuance, even where there is an objection to jurisdiction. In 1868, Aaron S. Bright brought a suit in this court against the Milwaukee & St. Paul Railway Company, and others, to determine a controversy as to a very large amount. The railway company (in 1868) put in an answer joining issue, and also setting up a counter-claim. The other defendants interposed a demurrer to the complaint at the same time. The plaintiff did not reply to the counter-claim. The issue of law raised by the demurrer was noticed for hearing, and at the November term, 1874, default of certain of the demurrants having been taken, the demurrer was sustained as to the others. After several years delay, plaintiff moved for leave to discontinue, and, the leave being granted only on condition of paying costs, he moved to transfer the cause into the United States circuit court, under the act of 1875 (below, p. 22). The defendants thereupon moved for an allowance in addition to costs, and both motions came on to be heard together. Bright . Milwaukee, &c. R. R. Co. Joseph B. Stewart, for plaintiff. F. N. Bangs, for defendants. LAWRENCE, J.-I am of the opinion that the plaintiff is too late in making his motion to remove this cause into the United States circuit court. The decision of the general term of this court, in the case of Warner v. Pennsylvania R. R. Co. (6 Hun, 197), seems to me to cover this case. In that case, the court held that under the provisions of the act of Congress (chap. 137 of 1875) providing for the removal of causes into the United States courts, "before or at the term at which said cause could first be tried, and before the trial thereof," it is too late to make such application, after the cause has been noticed for trial, and placed upon the calendar of the court, at a term at which it could be tried, even though it may not have been reached, and even if the trial thereof has been stayed by order pending the execution and return of a commission. In this case it appears that on October 21, 1868, a demurrer to the complaint was served on behalf of some of the defendants; and an answer on behalf of the railway company, which answer contained a counter-claim, to which the plaintiff for six years omitted to reply, or to attempt to reply. A hearing on the demurrer was actually noticed for the November term, 1874, and the demurrer sustained, and it is quite apparent that intermediate the service of the answer in 1868 and the date of making this motion there was a term of the court, at which this case could have been tried. The default on the demurrer was a trial as to the demurring defendants (Code, § 252). After the plaintiff had neglected to reply to the defendants' counter-claim, the issue was joined be Bright . Milwaukee, &c. R. R. Co. tween the plaintiff and the defendants, the railroad company, on the other allegations in the answer; and the case of Warner v. Pennsylvania R. R. Co. (supra), seems to be an authority for holding, that, as in point of fact, the cause could have been tried, i. c., by the plaintiff placing the same upon the calendar, and noticing it for trial, the plaintiff does not bring himself within the terms of the statute, even although he shows himself to have been under injunction in the mean time. On the authority of this case, and the reasoning contained in the opinion of the general term, I think that the plaintiff's motion to remove this cause into the United States circuit court must be denied. In regard to the defendants' motion for an extra allowance, as a condition to the granting of an order for the discontinuance of this action, it appears to me that the learned counsel for the plaintiff, in his argument as to jurisdiction, virtually asks me as a justice sitting at chambers to review the general term. The general term in the opinion delivered holds, that the plaintiff may discontinue on the payment of certain taxable costs, and the costs of opposing the motion; and in the order entered upon the decision rendered, the words "and without prejudice to an application for an allowance" were inserted. If the learned counsel for the plaintiff is right in his point as to jurisdiction, the general term had no power to impose any terms upon the plaintiff, on permitting him to discontinue. If all the proceedings were void for want of jurisdiction, the imposition of costs taxable or otherwise was void. But the general term have held, that they have a right to impose costs as a condition for allowing the plaintiff to discontinue this action, and their decision must be followed by me. There can be no difference between costs allowed by statute, and the allowance granted by the court, in the |