Santoro v. Trimble — 63 A.D. 413

Majority

p. 413

Joseph Santoro, by Vito D. Santoro, his Guardian ad Litem, Appellant, v. Gurden D. Trimble, Respondent.

Headnote

Change of venue in an aeiion for malicious prosecution —■ arrest at residence under a warrant issued in another county.

Where in an action to recover damages for an alleged malicious prosecution, it appears that the defendant filed a complaint with one of the justices of the peace of the county of Oswego, charging the plaintiff with the commission of the crime of larceny, and that a warrant was thereupon issued, and that the plaintiff was arrested in his home in Queens county and taken to Oswego county, where he was subsequently tried and acquitted, it cannot be said that the cause of action arose in Oswego county so as to entitle the defendant to have the venue of the action changed from the county of Queens to the county of Oswego.

Appeal by the plaintiff, Joseph Santoro, by Vito D. Santoro, his guardian ad litem, from an order of the Supreme Court, made at

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the Kings County Special Term and entered in the office of the clerk of the county of Queens' on the 9th day of October, 1900, changing the place of trial of the action- from the county of Queens, to the county of Oswego.

Samuel Weehsler, for the appellant.

L. W. Balcer, for the respondent.

In May, 1900, the defendant filed a complaint with one of the justices of the peace of the county of Oswego charging the plaintiff, a resident of Astoria in Queens county, with the commission of the crime of larceny. A warrant was thereupon issued for the plaintiff’s arrest, and he was arrested at his home and taken to Oswego county, where he was subsequently tried upon the charge and acquitted. This action is brought to recover damages because of these proceedings under the claim, of malicious prosecution.

On defendant’s motion for a change of the place of trial from Queens county, where the plaintiff has laid the venue, to - Oswego county, where the defendant desires <¿t, the defendant testified to seven witnesses and the plaintiff to fourteen,' Each side criticises the affidavit of the other as to its technical sufficiency, and as to the good faith and necessity of the evidence alleged to be obtainable from the prospective witnesses. Without entering into detail it is sufficient to says that the criticism is not unjustified in either case, but that upon making all due allowances the order appealed from cannot be supported upon the theory that it is necessary for the purpose of subserving the convenience of witnesses. The process of weeding out still leaver more of the fourteen witnesses remaining than of the seven. The order finds its main support upon the theory that the cause, of action arose in Oswego county, but in this respect I think it is in conflict with the rule in this department, as declared in Osborn v. Stephens ( 74 Hun, 91 ).

In that case the -facts were very similar to those in the case at bar. There the plaintiff resided in Westchester county, was arrested on a charge of larceny made in Tompkins county, to which county he was taken, but discharged. He sued the defendant for malicious prosecution, and the General Term reversed an order changing the

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place of trial from Westchester county to Tompkins county, holding that inasmuch as the' place of the transaction was not entirely in. Tompkins county the cause of action could not he. said to have arisen there in justification of the order appealed from. In view of that decision and the large preponderance of witnesses in Queens county, the order herein should be reversed.

All concurred, except Woodward, J., not sitting.

Order reversed, with ten dollars costs and disbursements.