
    INDEMNITY INS. CO. OF NORTH AMERICA v. SILVER.
    No. 50, Docket 21416.
    United States Court of Appeals Second Circuit.
    Argued Oct. 11, 1949.
    Decided Nov. 7, 1949.
    Herbert S. MacDonald, New Haven, Conn., D. M. Reilly, New Haven, Conn., David M. Reilly, New Haven, Conn., argued for defendant.
    Gumbart, Corbin, Tyler & Cooper, New Haven, Conn., Morris Tyler, New Haven, Conn., Donald F. Keefe, New Haven, Conn., argued, for the plaintiff.
    Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
   FRANK, Circuit Judge.

Five days before this action was begun, defendant reduced her claim against plaintiff so that the sum demanded was less than the jurisdictional amount. The unmistakable purpose of the reduction was either to prevent removal of a state-court action defendant intended to bring, or to prevent plaintiff’s bringing an action of the type we have here. Consequently, should defendant assert a claim for attorney’s fees in any state-court action, plaintiff will have available a perfect defense of estoppel. For there was here an assertion by defendant and a deprivation—of the right to trial in the federal courts—to plaintiff. Caldwell v. Nelson Morris & Co., 120 La. 879, 45 So. 927, 15 L.R.A., N.S., 423, 124 Am.St.Rep. 446, 14 Ann.Cas. 1043; Buehler v. Philadelphia & R. Ry. Co., 280 Pa. 92, 124 A. 325. This being so, defendant’s announcement to plaintiff’s representative that she was abandoning her claim was sufficient to reduce the sum in controversy below the jurisdictional amount, and the district court should have granted defendant’s motion for summary judgment.

Reversed.  