Hankins v. Hanford — 70 N.Y.S. 433

Majority

p. 433

(61 App. Div. 341.)

HANKINS v. HANFORD et al.

(Supreme Court, Appellate Division, Third Department.

May 21, 1901.)

Headnote

1. Venue—Change—Liability for Official Acts—Place of Trial.

Where a justice of the peace was sued in another county for wrongful acts done under color of his office in his own county, he had a right to a change of venue to the county of his residence.

2. Same—Witnesses—Convenience.

Where the papers on a motion for change of venue show that all material witnesses reside in the county to which the change is desired, a change will be granted for the convenience of such witnesses.

Appeal from special term, Chemung county.

Action by Frank R. Hankins against Nathan Hanford and Monmouth H. Ingersoll. From an order denying a change of venue? defendants appeal.

Reversed.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, and CHASE, JJ.

Alfred S. Robinson and George B. Davis, for appellants.

Knapp & O’Connell, for 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 then was 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. Prac. 248; Tupper v. Morin (Sup.) 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 transporation 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.

p. 434

For the reasons stated, the order should be reversed, with $10 costs and disbursements, and the motion to change the place of trial from Chemung to Tompkins county should be granted, with $10 costs. All concur.