Page:Federal Reporter, 1st Series, Volume 7.djvu/270

 258 KBDKRAIi BEFOBTBB. �of New York. In the petition for removai it is stated that there is a eontroTersy between the parties which is of such character that a final determination thereof can be had as to the plaintiff society and the defendant without the presence of the plaintiff insufance cbmpany, and which is also of such character that a final determination thereof oan be had, as between the plaintiff insurance company and the defendant, ■without the presence of the plaintiff society. �Tbe cpmplaint alleges the destruction Tsy flre of the church and par- sonagc huildipgSj, telonging to the plaintifiE society; that the flre waa causedby sparks'emitted fromthe defendant's steamer, and resultedfrom defendaut's negligence ; that the total losswas $9,457.23; that atthetime of the loss the plaintiff society held a policy of insurance, issued by the plajntifl insurance company, insuring the property to the extent of $5,000 ; that the amount of the insurance -was duly paid, and that the plaintiff society thereupon made to the plaintiff insurance company an assignment qf its claim against the defendant by reason of the loss, to the extent of the insurance paid, and judgmont is demanded for the full value of the property destroyed. �If the removal of the case to this court can be sustained at �all, it must be under the second clause of section 2 of the act �of 1875, which is as follows: �"And when, in any suit mention^ in this section, there shall be a con- troversy which is wholly between citizens of different states, and which can be fully determined as between them, then, either one or more of the plaintifis or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district." �The disposition ot the present motion involves an inquiry into the nature of the plaintiffs* cause of action. It has been long settled, both in England and in this country, that such a cause of action is single and indivisible, and that in a case like the present the insurer could not, at common law, sue the wrong-doer in his own name to recover the amount paid to the assured, but must bring his action in the name of the assured. London Assurance Co, v. Sainsbury, S Doug. 245 ; Mason v. Sainsbury, la. 60 ; Yates v. Wkyte, 4 Bing. (N. G.) 272; Hart v. Western R. Corporation, 13 Met. 105; Rocking- ham Mut. Fire Ins. Co. v. Bosher, 39 Me. 254; Conn. Mut. Life Ins.Co. v. N. Y. e N. H. R. Co. 25 Conn. 270; Peaiia Ins. Co. v. Frost, 37 111. 333. ��� �