Osborn v. Stephens — 56 N.Y. St. Rep. 430

Majority

p. 430

Alonzo Osborn, App’lt, v. George Stephens, Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Venue—Convenience of witnesses.

It was held that, under the facts and circumstances of this case, it was error to grant defendant’s motion for change of place of trial from Westchester to Tompkins county for convenience of witnesses.

Appeal from an order changing the place of trial.

A. J. Adams, for app’lt; David M. Dean, for resp’t.

The papers show that the defendant made a complaint upon a criminal charge of larceny in July, 1890, in Tompkins county. The arrest of the plaintiff was made in Westchester county. There were two complaints made upon the same charge, and the plaintiff was discharged upon each complaint. The arrest and the discharge are not disputed. The complaint in this action is for a malicious prosecution, and the plaintiff has to prove on the trial that the defendant had no probable cause to make the complaint and that he did so maliciously and with intent to injure the plaintiff. Upon these two items the trial should take place in Westchester county. The facts out of which the controversy arose are these: The plaintiff owed the defendant a small debt for groceries sold him. He had a crop of growing tobacco. He assigned the crop to defendant as security for the debt The plaintiff sold the crop and applied the proceeds to his own use. The defendant, after the sale, agreed to loan the proceeds to plaintiff’s wife on a note for four months, and did so. The note was not paid, and then followed the complaint. . The fact of the giving of the note by the plaintiff’s wife can be proven by the plaintiff’s wife and by Grinnell Barnes, witnesses who live in Westchester county. The plaintiff was arrested in Westchester

p. 431

county upon the first arrest. Upon the failure of that, the second arrest was made in Tompkins county. It will be seen that the proof of the loan of the money to the plaintiff’s wife is vital, and the plaintiff’s witnesses to prove that live in Westchester county. It cannot be said that the place of the transaction is entirely one in Tompkins county. The complaint was made there and the discharge given there, but plaintiff was a resident of Westchester county, and was taken, under circumstances of great indignity, from that county to Tompkins county.

The order should be reversed, with costs and disbursements, and the motion denied, with ten dollars costs, to abide event.