Cowen v. Quinn ( 1878 )

Gilbert, J.:

Higgins (of whom tbe plaintiff is tbe committee) was committed to prison in New York as an insane person, April 22, 1877, by order of one of tbe Commissioners of Charities of that city.

Tbe complaint alleges that an order was made by said Commissioners of Charities to deliver him to his friends, but that tbe defendant, “ who then and there bad tbe said Higgins in bis charge and custody, by virtue of said order, refused to release him; ” for which tbe plaintiff demands damages.

Tbe defendant is warden of tbe city prison in New York, and as such be received and refused to release Higgins.

Defendant, after due demand to change tbe venue, moved to transfer tbe case to New York, on tbe pleadings, and an affidavit alleging:

I. That he bad four witnesses, who resided in New York.

II. That be himself, as well as two of said witnesses, were public officers of tbe city of New York (said Quinn being warden of said prison), and could not leave tbe city without neglecting important public duties.

Tbe plaintiff swore to but two witnesses, who reside in New Utrecht. Tbe motion was denied, and tbe defendant appeals.

Tlie defendant is a public officer, and the action is for an act done in virtue of his office. In such a case the statute (Code, § 983 ; former Code, § 124) requires that the action shall be tried in the county where the cause of action arose. We have no discretion in the matter.

The order must be reversed, with ten dollars costs and disbursements.

Dykman, L, concurred; Barnard, P. J., not sitting.

Order denying change of place of trial reversed, with costs and disbursements to abide event, and motion granted.