¶1Removal of Causes — Time of Application — Amendment Statin® New Cause of Action.
¶2A suit between citizens of different states may be removed in due season after an amendment stating- a new and different cause of action, in which tlie original suit is merged, although the timo within which it might originally have been removed has expired.
¶3Tins was a suit by O. B. Mai toon and others against H. P. Reynolds, brought in a court of tbe state of Connecticut, and removed therefrom by defendant. Plaintiffs moved to remand.
¶4Wooster, Williams & Gagen and Webster & O’Neillc, for plaintiffs.
¶5Doolittle & Bennett, for defendant.
¶7This controversy is between citizens of different states. Tbe original complaint, in the state court, alleged that certain notes were given without consideration, and asked for an injunction restraining the defendant from negotiating-said notes. After tlie time had expired within which the cause might originally have been removed, the plaintiffs filed a new count, alleging fraud, and asking for equitable relief, or for a judgment for $3,000 damages. In due season thereafter, the defendant removed the cause to this court.
¶8The single question presented is whether, by the filing of the substituted complaint, the defendant, acquired a right of removal. The determination of this question depends; upon whether the amended complaint states a new and different cause of action, and one in which the original suit is merged. Yarde v. Railroad Co., 57 Fed. 913; Huskins v. Railroad Co., 37 Fed. 504; Evans v. Dillingham, 43 Fed. 177; State of Texas v. Day Land & Cattle Co., 49 Fed. 593, 596. It is clear that in this case the second count presents a distinct cause of action, — fraud, calling for a distinct remedy at law; money, damages. The allegations contained in the first count and the relief, therein prayed for are incorporated in the second count.
¶9The motion to remand is denied.