Majority
p. 217Allen vs. Forshay and others. September 4.
Headnote
In an action against a public officer for acts done by him by virtue of his office, the venue will be changed on his application to the county where the fact complained of happened; but if there be a dispute whether the action be or be not local, the motion will be disposed of upon the usual grounds.This was a motion to change the venue from New-York to Westchester. The action was trespass for taking and carrying away a quantity of mahogany and other timber, alleged in the declaration to have been taken at Yonkers, in the county of Westchester, to wit, at, &c. Forshay, one of the defendants, made affidavit that the property in question was taken by him as under sheriff of the county of Westchester, by virtue of an execution against R. G. A., the father of the plaintiff, and that the other defendants acted in his aid and assistance; he also stated that he had 22 witnesses residing in Westches-ter. The plaintiff made affidavit that he had 25 witnesses residing in New-York. „
By the Court,
The question here is, whether, when the action is local and the venue is laid in a wrong county, the court will change the venue on the application of the defendant, or leave him to the remedy given by statute to nonsuit the plaintiff at the trial. 2 R. S. 353, § 14, and 409, § 3. When it clearly appears that the action is local, and the defendant moves to change the venue, his motion ought to be granted; but when there is a dispute whether the action be or be not local, the motion to change the venue ought to be determined upon the usual grounds governing in these cases, viz. the convenience of the parties and their witnesses. Here the action, beyond all doubt, is local, and the motion is accordingly granted.