
    (74 Hun, 91.)
    OSBORN v. STEPHENS.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Change of Venue—Convenience of Witnesses.
    - In an action for malicious prosecution it appeared that plaintiff, after assigning a growing crop to defendant to secure a debt, sold the crop, and used the proceeds. Defendant then agreed to lend the proceeds to plaintiff’s wife for four months. The note given for such loan was not paid, and defendant had plaintiff arrested on the charge of grand larceny, first in W. county, and afterwards in T. county. Plaintiff’s witness, to prove the loan of the money to plaintiff’s wife, resided in W. county. HeldI, that it was error to grant defendant’s motion for change of venue from W. county to T. county for convenience of witnesses.
    Appeal from special term, Kings county.
    Action by Alonzo Osborn against George Stephens for malicious prosecution. From an order changing a place of trial from Westchester county to Tompkins county for convenience of witnesses, plaintiff appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    A. J. Adams, for appellant.
    David M. Dean, for respondent.
   BARNARD, P. J.

The papers show that the defendant made a complaint upon a criminal charge of larceny in July, 1890, in Tompkins county. The arrest of the plaintiff was made in Westchester county. There were "two complaints made upon the same charge, and the plaintiff was discharged upon each complaint. The arrest and the discharge are not disputed. The complaint in this action is for a malicious prosecution, and the plaintiff has to prove on the trial that the defendant had no probable cause to make the complaint, and that he did so maliciously, and with intent to injure the plaintiff. Upon these two issues the trial should take place in Westchester county. The facts out of which the controversy arose are these: The plaintiff owed the defendant a small debt for groceries sold him. He had a crop of growing tobacco. He assigned the crop to defendant as security for the debt. The plaintiff sold the crop, and applied the proceeds to his own use. The defendant, after the sale, agreed to loan the proceeds to plaintiff’s wife oh a note for four months, and did so. The note was not paid, and then followed the complaint. The fact of the giving of the note by the plaintiff’s wife can be proven by the plaintiff’s wife and by Grinnell Barnes, witnesses who live in Westchester county. The plaintiff was arrested in Westchester county upon the first arrest. Upon the failure of that, the second arrest was made in Tompkins county. It will be seen that the proof of the loan of the money to the plaintiff’s wife is vital, and the plaintiff’s witnesses to prove that live in Westchester county. It cannot be said that the place of the transaction is entirely one in Tompkins county. The complaint was made there, and the discharge given there, but plaintiff was a resident of Westchester county, and was, taken, under circumstances of great indignity, from that county to-Tompkins county. The order should be reversed, with costs and-, disbursements, and the motion denied, with $10 costs, to abide.event. All concur.  