Page:Federal Reporter, 1st Series, Volume 2.djvu/24

BAILEy r. NEW TOBK BATINGS BANK. IT �. Bubseqnently, Lewis H. Bailey took steps to remove the cause into this court. His petition for removal set forth his own eitizenship as of Connectieut, and the citizenship of the plaintiff and the bank as of New York ; that the bank was a mere stake-holder of the fund in controversy, and had no interest in the controversy, which was wholly between the plaintiff and the petitioner, as representing the estate of the deceased. The state court made an order reciting that the suit is one in which there is a controversy "between a citizen of the state of New York and a citizen of the state of Con- nectieut," and removing "the said cause" into this court. �The plaintiff now moves to remand this cause to the state court. No order has been made that the bank pay into court the deposit in controversy, to await the final determination of the action, nor has it been paid into court, nor has the bank been stricken out as a party to the action, nor has its liability for the deposit ceased. On the eontrary, the answer of the bank to the complaint expressly states that it does not propose to pay the moneys into court, or to be stricken out as a party, or to bave its liability for the money cease, until a legal representative of the estate shall have been appointed and made a party to the action. �Under these circumstances, if the court should adjudge that the plaintiff is entitled to the moneys, and they are not in court, it must award to her execution against the bank to collect them. It cannot do that unless the bank is a party. So the bank is a necessary party as respects the plaintiff. She has brouglit the bank into court, and nothing that has been done has had the effect to take the bank out of court, or out of the suit. Adding' Lewis H. Bailey as a defendant bas had no such effect. On the complaint the bank is liable to the plaintiff. Showing that the bank, as the case stands, is not liable to Lewis H. Bailey, does not necessarily show that it is liable to the plaintiff. On the answer of the bank it has a right to be heard to defeat the claim of Lewis H. Bailey, because he is not the representative of the estate, and Jiis acquittance will not protect the bank, and then to, be heard �v.2,no.l— 2 ����