Smith v. Westchester Fire Insurance

Pee. Cukiam.

When a nonresident defendant and a resident of this State are sued in a State court the nonresident is entitled to remove .the cause to the Federal Court in the event the complaint fails to state a cause of action against the resident defendant. Even if concurrent negligence is alleged in the complaint, but at the same time it appears from an interpretation and examination of the substance thereof that the charge of concurrent negligence is no more than a hostile gesture or noisy allegation, the right of removal is not thereby defeated or impaired. This Court spoke upon the subject in Brown v. R. R., ante, 25. The opinion declares: “But however this may be, in addition to charges of concurrent negligence on the part of both defendants, which the movant says is only a conclusion of the pleader, there is also in the present complaint allegation of negligence on the part of the nonresident defendant alone, sufficient in and of itself to constitute a distinct and independent cause of action, which gives rise to a separable controversy.” The Brown case rules the case at bar, and the order of removal made by the trial judge is approved.

Affirmed.