Frank R. Hankins, Respondent, v. Nathan Hanford and Monmouth H. Ingersoll, Appellants

Frank R. Hankins, Respondent, v. Nathan Hanford and Monmouth H. Ingersoll, Appellants. False imprisonment — action for, against a justice of the peace — venue changed to the justices residence. Where one of the defendants in an action for an alleged false imprisonment is a justice of the peace residing in Ithaca, Tompkins county, and the alleged wrongful acts were done by him under color of his office in Ithaca, where both the plaintiff and the defendants then resided, he is entitled to have the venue of the action changed from the county, to which the plaintiff has thereafter moved, to the county in which such defendant resides. Appeal by .the defendants, Nathan Hanford and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 14th day of December, 1900, denying the defendants’ motion to change the venue of the action from Chemung to Tompkins county. This action was brought to recover damages for an alleged false imprisonment. Alfred 8. Robinson and George B. Demis, for the appellants. D. O' Oonnell, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: 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 dollors 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.