Porter v. Pillsbury , 11 How. Pr. 240 ( 1855 )

Dean, Justice.

The defendant is the superintendent, or principal keeper, of the Albany county penitentiary. The plaintiff was, in 1854, by a commitment of a justice of the peace of the county of Dutchess, confined to the penitentiary of which the defendant had charge for the period of six months. During that time he was, by order of the defendant, subjected to the discipline of the prison. And the plaintiff, who, at the time of the commitment was, and now is, a resident of the county of Dutchess, brings his action for false imprisonment and assault and battery. The defendant is a resident of the county of Albany; and the complaint charges expressly, that all the illegal acts of the defendant were done in the county of Albany.

This motion is made to change the place of trial from Dutchess to Albany county. It cannot be granted on the ground of the convenience of witnesses—because, from the affidavits, and the nature of the issue to be tried, it is evident that but few witnesses will be needed on either side, and probably as many of those really necessary reside in Dutchess as in Albany county. .

But the motion must be granted on the ground that the defendant is a public officer. He has the charge of a public institution. The position that he holds is, in the act establishing the penitentiary laws of 1844, chapter 162, denominated an “ office,” and the person who fills it is called an officer.”

The defendant is, therefore, within the reason and language of § 124 of the C.ode. (People agt. Hayes, 8 Howard, 248.)

The motion must be granted, with $10 costs to abide the event.