
    (63 App. Div. 413.)
    SANTERO v. TRIMBLE.
    (Supreme Court, Appellate Division, Second Department.
    July 25, 1901.)
    Malicious Prosecution—Venue.
    Where plaintiff, a resident of Q. county, was arrested for larceny, and taken to O. county for trial, and was discharged, and subsequently brought an action in Q. county for malicious prosecution, the cause of action did not arise in O. county, and it was error to change the place of trial to such county.
    Appeal from special term, Queens county.
    Action by Joseph Santero, by Vito D. Santero, his guardian ad litem, against Garden D. Trimble. From an order changing the place of trial from Queens county to the county of Oswego, plaintiff appeals. Reversed.
    Argued before GOODRICH, P. J., and HIRSCHBERG, JENKS, and SEWELL, JJ.
    Samuel Wechsler, for appellant.
    L. W. Baker, for respondent.
   HIRSCHBERG, J.

In May, 1900, the defendant filed a complaint with one of the justices of the peace of the county of Oswego, charging the plaintiff, a resident of Astoria, in Queens county, with the commission of the crime of larceny. A warrant was thereupon issued for the plaintiff’s arrest, and he was arrested at his home and taken to Oswego county, where he was subsequently tried upon the charge and acquitted. This action is brought to recover damages because of these proceedings, under the claim of malicious-prosecution.

On defendant’s motion for a change of the place of trial from Queens county, where the plaintiff has laid the venue, to Oswego county, where the defendant desires it, the defendant testified to 7 witnesses, and the plaintiff to 14. Each side criticises the affidavit of the other as to its technical sufficiency, and as to the good faith and necessity of the evidence alleged to be obtainable from the prospective witnesses. Without entering into detail, it is sufficient to say that the criticism is not unjustified in either case; but that, upon making all due allowances, this order appealed from cannot be supported upon the theory that it is necessary for the pur-' pose of subserving the convenience of witnesses. The process of weeding out still leaves more of the 14 witnesses remaining than of the 7. The order finds its main support upon the theory that the cause of action arose in Oswego county, but in this respect I think it is in conflict with the rule in this department, as declared in Osborn v. Stephens, 74 Hun, 91, 26 N. Y. Supp. 160. In that case the facts were very similar to those in the case at bar. There the plaintiff resided in Westchester county, was arrested on a charge of larceny made in Tompkins county, to which county he was taken, but discharged. He sued the defendant for malicious prosecution, and the general term reversed an order changing the place of trial from Westchester county to Tompkins county, holding that, inasmuch as the place of the transaction was not entirely in Tompkins county, the cause of action could not be said to have arisen there, in justification of the order appealed from. In view of that decision, and the large preponderance of witnesses in Queens county,, the order herein should be reversed. All concur.  