The opinion of the court was delivered by: GODDARD
Motion by plaintiff to remand this suit to the New York State Supreme Court upon the ground that the defendant's petition for removal was not timely filed.
This suit was started in the state court by the service of a summons and complaint on March 25, 1950. According to the complaint, the plaintiff sought recovery of one gold coin of the United States commonly known as a 'Double Eagle'. It did not appear from the pleadings that the defendant, in allegedly wrongfully taking this coin from the plaintiff, was acting as a federal officer. No mention was made of his official capacity.
On July 10, 1950, plaintiff served an amended complaint which alleged that the defendant had wrongfully taken this coin from the plaintiff while acting beyond and outside the scope of his statutory authority and power and that his action was devoid of constitutional, statutory or other valid authority or power in support thereof. On July 24, 1950, the defendant filed in this court his petition for removal.
Section 1446(b) of Title 28 United States Code Annotated, provides:
'(b) The petition for removal of a civil action or proceeding shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
'If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.'
The defendant, an agent of the Secret Service Treasury Department, based his petition for removal on Section 1442(a)(1) of Title 28 United States Code Annotated, which grants the right of removal to 'Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office * * *'.
Since it did not appear from the pleadings that the defendant was being sued for an act performed under color of his office until the defendant received a copy of the amended complaint and since he filed his petition for removal in this court within twenty days after receiving the amended complaint, his petition was timely filed.
Motion to remand is denied.
Motion to dismiss the complaint under Rule 12(b) (1, 2, 6, 7) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
On March 15, 1933, there were minted by the United States in its mint at Philadelphia, Pennsylvania, 445, 500 Twenty Dollar gold coins, known as 'Double Eagles'. On March 6, 1933 the President of the United States had proclaimed a bank holiday prohibiting banks from paying in gold coin. No. 2038, 48 Stat. 1689. Pursuant to Executive orders of the President of the United States No. 6102, dated April 5, 1933, and No. 6260, dated August 28, 1933, 12 U.S.C.A. § 95a note, the said 'Double Eagles' were withheld from circulation and none were ever issued as currency. The Gold Reserve Act of 1934, 31 U.S.C.A. Sect. § 315 b, prohibited the coinage and payment of gold coins by the United States. Nevertheless, in September, 1943 the plaintiff came into possession of one of these 'Double Eagle' coins. The Treasury Department learned of this, and on May 15, 1945, Herbert E. Gaston, Assistant Secretary of the Treasury, wrote to the plaintiff as follows: 'This Department is advised that there is in your possession one double eagle minted in 1933; and an investigation of the circumstances under which this and several identical coins came into the hands of private persons has disclosed that they were embezzled or stolen from the United States. In view of the provisions of Section 48 of the Criminal Code (U.S.C. Title 18, Section 101
) making unlawful the retention, with knowledge, of property of the United States which has been embezzled or stolen, I wish to advise that an Agent of the Secret Service will call upon you in the near future to receive from you the coin in question.'
On June 20, 1945 the plaintiff delivered the said coin to the defendant, a Secret Service Agent, for delivery to the Treasury Department. At the same time, the plaintiff wrote a letter ...