Ayres agt. The Western Railroad Company.

cases of actions prosecuted by an assignee, for if such was the intention it would have been so declared. The true construction was given to the statute by Mr. Justice NELSON, in the opinion before referred to, and by that we must be guided.

It is also urged, that because this action is prosecuted by an assignee, the circuit court of the United States has no jurisdiction. This assumes that no action by an assignee can be maintained in the federal courts, and the assumption. is entirely unfounded. As before shown, an action to recover damages for the capture and detention of property, is not for the recovery of the contents of a chose in action, and not within the exception of the act of congress; and if not, there is no objection to the jurisdiction. The jurisdiction is forbidden only in specified cases, and it is enough to say that it is not one of them.

It is also said, that if the right of removal is doubtful, the order should not be granted, and a suggestion of this kind was made in the case of Anderson agt. Manufacturer's Bank (14 Abb. 436). If this case is not within the exception in the act of congress, there is no doubt of the right of removal. It is for the court to determine whether the defendant brings the case within the law entitling it to have the action removed, and if this appears, the question is free from doubt. If on the contrary the case is not one entitled to be transferred to the federal courts, it is equally clear that the order should be refused. It is for the court to say which of these alternatives is presented, and when a conclusion is reached all doubt is removed, and the duty is plain.

If upon the papers presented, the defendant is by law. entitled to have the cause removed, the state court has all jurisdiction, and all further proceedings in it are coram non judice and void, and the judgment pronounced will be reversed (Gardner agt. Langest, 16 Peters' 97). And if the case is improperly removed, the circuit court will remand it to the state court; and if in such case the circuit court should improperly entertain jurisdiction, the supreme court will correct the error (Pollard agt. Dwight, 4 Cranch, 429).

Ayres agt. The Western Railroad Company.

It is thus perceived that if this court should improperly transfer a cause, its judgment in favor of the plaintiff will be inefectual, and if it should improperly send a case for trial to the circuit court of the United States, that court will correct the error, and remand the case to us.

It is thus apparent that in no event can the right of either party be ultimately lost, and this disposes of the objection. made by the plaintiff's counsel on the argument, that if this cause should be improperly removed, the right of the plaintiff might be lost by the running of the statute of limitations; for if the circuit court shall refuse to entertain jurisdiction of this case, if transferred, it will be remanded, and no new action in this court need be commenced.

The objection that the petition for the removal was brought too late, is not tenable.

The summons and complaint were served on the 5th of June, 1866, and the time to answer would expire on the 25th. On that day an affidavit showing the intention of the defendant to apply for a removal of the cause to the federal court; a chambers' order was obtained from a justice of this court extending the time to answer twenty days, which was duly served.

This was not entering an appearance in the action; it was only a proceeding to prevent the entry of judgment, to enable the defendant to comply with the act of congress, and apply for a transfer of the cause. On the 5th day of July, the appearance of the defendant was entered by a special order, and on that day the petition and bond was filed. This must be regarded as sufficient for otherwise, under our practice, a defendant entitled to have his cause tried in the federal court, would wholly lose the benefit of the provisions of the act of congress, if for any reason he was unable to file his petition within twenty days after he was served with a complaint.

It would be strange if an extension of the time to answer, for the very purpose of enabling a defendant to apply for a removal of the cause, should be regarded as such a submission to the jurisdiction of the state court as will deprive him

Ayres agt. The Western Railroad Company.

of the benefit secured by the act of congress. It must be observed also, that our practice has radically changed since the act of congress was passed, and it is not now entirely clear, what under the present system is the "entering of an appearance in a state court." It certainly is not done by obtaining an order extending the time to answer, and perhaps there is no other way of complying with the provisions of the statute than was done in this case. At all events, we regard it as sufficient.

The defendant is a corporation created by the laws of the state of Massachusetts, and is, therefore, a citizen of that state. This now is too well settled to be longer questioned, and it is not questioned in this case.

It is said, however, that because the defendant is the lessee of, and operated a railroad organized under the law of this state, that it does not come within the act of congress.

The right of removal depends upon the citizenship of the parties, and not upon the extent of the business they transact in this state, and it is not perceived how it can be said that a citizen of Massachusetts, doing business of any kind within this state, has waived his right to remove a cause to the federal court. Any such construction would nullify the act of congress.

It is quite true that it has been decided at a special term (24 How. Pr. R. 517), that a foreign insurance company doing business in this state, and having appointed an agent under a special statute, upon whom process might be served, lost the right to remove a cause to the courts of the United States. It is unnecessary to say whether this case was rightly decided or not, and there may be grave doubts as to its correctness. Yet the case is wholly unlike this, for here the defendant has waived nothing, if coming into this state by its agents, and doing business, is not to be deemed a waiver of the right secured by the act of congress, and clearly this is not so.

The order appealed from should be affirmed, with ten dollars costs.

Mutual Benefit Life Insurance Co. agt. The Supervisors, &c., of N. Y.

COURT OF APPEALS.

THE MUTUAL BENEFIT LIFE INSURANCE COMPANY, appellants agt. THE BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF NEW YORK, THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK AND JAMES NESBITT, respondents. SAME agt. SAME, except JOHN H. HILLYER, instead of NESBITT. No relief can be administered in equity, where the remedies at law are adequate for the attainment of justice.

Where a tax is imposed in this state on the amount of stocks and bonds deposited with the comptroller of this state, by a foreign life insurance company under the laws of 1851, having an agency and doing business in this state, such company cannot sustain an equitable action against, and restrain by injunction, the proper authorities by which such tax was imposed, from the collection thereof. The assessment of such a tax may be reviewed and corrected by certiorari, or be stricken from the roll by mandamus.

September Term, 1866.

THESE actions were instituted to test the liability of these plaintiffs to be taxed in the sum of $100,000, deposited by them with the comptroller of this state. The plaintiffs are a corporation under the laws of the state of New Jersey, for the business of life insurance. They had an office in the city of New York, and an agent there for the transaction of such business.

By an act of the legislature of this state passed in 1851 (chap. 95), all companies transacting the business of life insurance within this state, were required to deposit with the comptroller of this state $100,000 in public stocks or bonds. The comptroller was to hold such stocks, bonds and mortgages, as security for policy holders (§§ 1 and 2). Under the provisions of the act, these plaintiffs deposited with the comptroller of the state the sum of $100,000, and this sum has been included in the assessment lists of the city of New York, against these plaintiffs, as so much personal property liable to taxation under the laws of this state.

In 1856, the board of supervisors of the city and county of New York imposed as a tax thereon, the sum of $1,383,

Mutual Benefit Life Insurance Co. agt. The Supervisors, &c., of N. Y.

and the defendants, or some of them, were proceeding to collect the same.

The first above entitled action was commenced in the superior court of the city of New York. The complaint set out the foregoing facts, and claimed that the said tax was erroneous and unlawful, and should be remitted or corrected. It also set forth that the board of supervisors had issued their warrant to the defendant, James Nesbitt, to collect said tax, and that he, by virtue thereof, had levied upon the property of the said plaintiffs; that the amount of the tax when collected, would be the property of the defendants, the mayor, &c., of the city of New York. The complaint prayed that the defendants might be enjoined from collecting the tax, or from interfering with the property levied, and that the court would adjudge that the defendants be restrained from collecting or receiving the same, or for such further or other relief, or both, as might be just.

The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

Judgment was given for the defendants, dismissing the complaint with costs, and this judgment was affirmed at the general term, and the plaintiffs now appeal to this court.

The second of the above entitled actions was commenced in the supreme court, and the complaint set out an assessment in the same manner, and an imposition of a tax thereon in the sum of $1,556,44 for the year 1857, and otherwise contained the same facts and the same prayer, as the complaint in the superior court.

The demurrer thereto alleged these grounds: First, that the supreme court had no jurisdiction of the subject of the action; second, that said court could not review by complaint and injunction the proceedings of subordinate tribunals, created by and acting under a statute, and clothed with the exercise of political powers; third, that the complaint did not state facts sufficient to constitute a cause of action. Judgment was given for the defendants, and the same was