Opinion
May Term, 1901.
Alfred S. Robinson and George B. Davis, for the appellants.
D. O'Connell, for the respondent.
The complaint in this action does not disclose the plaintiff's place of residence at the time the action was commenced. The answer alleges that both plaintiff and defendants resided at the time of the arrest complained of in the village of Ithaca, Tompkins county. The plaintiff, in his affidavit opposing the motion for change of venue, states that he was then a resident of Elmira, Chemung county. It would appear that he became a resident of Elmira some time after the arrest and presumably after the action was brought.
The principal grounds urged for a change of venue are:
First. That one of the defendants is a public officer residing in Ithaca, and the wrongful acts charged were done in Ithaca and done under color of his office as justice of the peace.
Second. That the convenience of witnesses requires the change.
On both grounds I think the appellants' contention should prevail.
The answer alleges that the larceny charged was committed in Tompkins county and outside the limits of the village of Ithaca, and that the justice had jurisdiction to issue the warrant of arrest. There seems to be no question but that this public officer had a right to invoke the provision of law which permits him to demand trial for this alleged wrong in the county where he resides. ( People v. Hayes, 7 How. Pr. 248; Tupper v. Morin, 12 N.Y. Supp. 310.)
The affidavit opposing the change shows all the witnesses known to plaintiff in Elmira or outside Tompkins county to be those who can testify to the fact that plaintiff was there placed temporarily in jail for a few hours awaiting transportation to Ithaca. These facts are probably undisputed and can in any event be established fully by plaintiff and the officer residing in Ithaca who had him in custody. It is apparent from the papers that all the material witnesses on both sides reside in Tompkins county.
For the reasons stated the order should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial from Chemung to Tompkins county should be granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.