Bragelman v. Berding ( 1873 )

J. F. Daly, J.

The defendant is an alien, and while on a visit to this country committed the acts upon which the plaintiff’s alleged cause of action arose. The summons was served upon him in this city, and immediately afterwards he left the State and subsequently the country. The moving papers state that he desires to have this cause removed to the circuit court of the United States, and to serve his petition to that effect, and for that reason has asked and obtained from this court an extension of time to appear as well as to answer. It seems that the application for removal is to be made under the act of 1789, which requires the application for removal to be made at the time of the appearance of the defendant, and not under the act of 1866 or of 1867, providing for a removal at a subsequent stage of the action. I do not know of any practice which permits an extension of time to appear. Extensions of time to answer or to demur may be granted, and it has been held that applying for and obtaining time to answer did not amount to a general appearance, and the causes were removed (Disbrow v. Driggs, 8 Abb. Pr., 305).

The application for an extension of time to answer may therefore, it would seem, be made without prejudice to the right of removal at the time of appearing, but there is no authority for a stay of proceedings if such extension be not granted. The plaintiff claims that the defendant has already appeared in the action. That question will be material to be considered in the event of his presenting a petition for removal of this cause. Upon the papers I shall give defendant twenty days’ further time to answer or demur; but that is all that I have power to do in the premises.