The motion to remove this action to the United States court should be denied, for two reasons: First, it is too late; second, the plaintiffs and defendants respectively are not all citizens of different states. (1.) It is too late because the issues not only could, but actually have been, tried. There is no limitation in the statute to issues of fact. There were here several trials of issues of law, and final judgment might have been rendered thereon. Leave to answer, even though usual, is in theory of discretion. Congress did not intend to permit a removal after such experiments in the state courts (Murray agt. Holden, 10 Rep., 162; Forrest Home agt. Keeler, 9 Rep., 432; Alte agt. Rotter, 4 Dill., 562; Bright agt. M. N. N. Co., 1 Abb. N. C., 15; and see Removal Cases, 10 Otto, 473). (2.) The affidavits show that one of the plaintiffs is a citizen and resident of this state. The same is true of one of the defendants. That is fatal to a removal under the act of 1875. All the persons constituting “the party” on one side must be citizens of different states from those on the other side (Burke agt. Flood, 9 Rep., 501; Lawyer agt. S. M. I. Co., 14 Blatchf., 451; Chicago, St. L. R. W. Co. agt. McCourt, 9 Rep., 569). (3.) The averments of the petition are not conclusive on the state courts. We may ascertain the truth as to the existence of the- requisite facts (Clarke agt. Opdyke, 10 Hun, 383).
Motion denied, with ten dollars costs.