Whether the order is appealable to this court depends upon the inquiry, whether the defendant *Page 239 had an absolute right to a stay of all further proceedings in the action in the Supreme Court. If he had, the order is appealable. If it was discretionary whether or not to grant such stay, it is not appealable. (Code, sub. 4, § 11; Foote v. Lathrop,41 N Y, 358; § 3 of the act of congress of May 11, 1866; 14 U.S. Statutes at Large, 46); among other things, provides that upon filing the petition for the removal of the cause to the Circuit Court of the United States, c., the further proceedings in the State court shall cease, and not be resumed until a certificate, under the seal of the Circuit Court, stating that the petitioner has failed to file copies in the Circuit Court at its next term, is produced. It follows, that if the cause was removed into the Circuit Court, the appellant had an absolute right to a stay of further proceedings in the Supreme Court. It was the duty of the Special Term to determine whether the cause was removed. It did determine that it was not, and upon this ground denied the motion. There was no question but that the proper bond with sufficient surety had been filed, and none but that the facts stated by the appellant in his petition were true and that the petition was seasonably and properly filed. It appears from the opinion, that the Special Term denied the motion, for the reason that these facts did not constitute a defence, or in other words, show a case that came within the provisions of the acts of congress authorizing a removal of the cause. Those facts in substance were, that the action was brought to recover damages for the alleged arrest of the plaintiff and his imprisonment and detention in the city of New York, and at Fort La Fayette, in the State of New York, in the year 1864. That the petitioner had appeared in the action and answered the complaint, and that the action was pending and at issue, and that, at the time the plaintiff alleges in his complaint he was arrested and imprisoned, and for a long time prior thereto, the petitioner was a major general of volunteers in the army of the United States, and was, by order of the president of the United States, assigned to and exercising command of the military department known as the department of the *Page 240 east, which department included in its limits the whole of the State of New York. That while the petitioner was in such command, he was as such major general commanding, officially informed that the said plaintiff, Daniel D. Bell, was or represented himself to be an officer in the volunteer service of the United States, to wit, captain in the 132d regiment of New York Volunteers, and that while acting as such officer he, the plaintiff, had cheated and defrauded certain recruits out of bounty which had been paid for them; that thereupon it became the duty of the petitioner, by virtue of his office and command, to cause the plaintiff to be arrested and held for examination and trial. That an order was written and signed by command of the petitioner by a major in the volunteer service of the United States, and aid to the petitioner, directed to an officer in Ulster county, directing the arrest and detention of the plaintiff at Fort La Fayette, and that he was so arrested and detained by virtue of and under said order. That the action was brought for such arrest and imprisonment, which took place during the rebellion, under the order above mentioned, and that the suit was brought for alleged trespasses committed during the rebellion by virtue of or under color of authority derived by the petitioner from the president of the United States, and that all the acts of the petitioner in the premises were done under and by virtue of his authority as major-general, and that all such acts were done under and in pursuance of the general orders issued by the president and secretary of war in force at the time said plaintiff was arrested and imprisoned. (Section four of the act of congress relating to habeas corpus and regulating judicial proceedings in certain cases.) 12 U.S. Statutes at Large, 756, provides that any order of the president, or under his authority, made at any time during the existence of the present rebellion shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any grant, seizure, arrest or imprisonment, made, done or committed, or acts omitted to be done under and by virtue of such order, or under color of any law of congress, and such *Page 241 defence may be made by special plea or under the general issue. Section one of the act to amend the act relating to habeas corpus, etc. 14 U.S. Statutes at Large, 46, provides that any search, seizure, arrest or imprisonment made, or any acts done or omitted to be done, during the said rebellion, by any officer or person under and by virtue of any order, written or verbal, general or special, issued by the president or secretary of war, or by any military officer of the United States holding the command of the department, district or place within which such seizure, search, arrest or imprisonment was made, done or committed, or any acts were so done, or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended, or by any other person aiding or assisting him therein shall be held and are hereby declared to come within the purview of the act to which this is amendatory, and within the purview of the fourth, fifth and sixth sections of said act for all the purposes of defence, transfer, appeal, error or limitation provided therein. Section five of the act of March 3, 1863, provides for the removal of cases arising upon the act to the United States court for trial. Section three of the act of March 11, 1866, amends and construes the fifth section of the act of 1863. The petitioner has done all that is required by these sections to remove the cause, provided the facts stated in the petition show a case within the provisions of these statutes. The law is so well settled that in cases to which the judicial power of the government of the United States extends, congress may provide for their removal before trial in the Federal courts, or for the review by the Supreme Court of the United States upon appeal or writ of error of judgments of the State courts, that an examination of the authorities is unnecessary. The only question is, whether the case of the petitioner is one to which the judicial power of the United States government extends. Section 2, article 3, of the United States constitution, among other things, provides: That the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United *Page 242 States and treaties made under their authority. The case presented by the petition is one presenting the questions whether the acts of congress, above referred to, are constitutional, and therefore valid and sound. Whether by these acts power was conferred upon the president and other officers specified to determine in what cases the public safety required a search, seizure, arrest or imprisonment of any person, and to issue orders directing such searches, etc., when it was so determined, making such orders, when issued, a defence to any action brought for the acts done in pursuance thereof, a defence as well for the president or other officer authorized to issue them, as for subordinates who acted in their execution. These and other questions upon these acts that may arise upon the trial, the petitioner has an absolute legal right to have determined by the courts of the United States. The State courts cannot deprive him of this right, whatever views may be entertained in regard to the questions so presented. The question is not whether the defence is valid in the opinion of the State court, but whether the validity or construction of the acts of Congress is to be determined. (Jones v. Seward, 41 Barb., 270.) The orders of the General and Special Terms must be reversed and an order staying all further proceedings granted.
CHURCH, Ch. J., and RAPALLO, J., concur with ALLEN, J.
CHURCH, Ch. J., and FOLGER, are of opinion that the case is not within the act of congress.
For affirmance, CHURCH, Ch. J.; ALLEN, FOLGER and RAPALLO, JJ.
For reversal, GROVER and PECKHAM, JJ.
Order affirmed. *Page 243