The motion is pressed upon two grounds: convenience of witnesses, and that the defendants are public officers (Code, § 124, 125, 126).
Very little reliance can be placed upon an allegation of the materiality of witnesses, unless it be shown wherein they are material (see Rule 44; Jordon vs. Garrison, 6 How. Pr. R. 6). However, as there is no affidavit of any witnesses on the part of the plaintiffs, if the motion turns upon this point, it must be granted.
Are these commissioners public officers? Mr. Justice Nelson was inclined to consider certain persons, like these defendants, appointed by. an act of the legislature to perform certain public *250duties, officers; particularly as they were so denominated in the act appointing them (The People vs. Comptroller, &c. 20 Wend. 595). In the 9th section of this act, the comptroller is authorized to fill any vacancies that might occur “ in the office of said commissioners.” The statute requires an action against a “ public officer,” for an act done by him by virtue of his office, to be tried where the cause of action arose, unless changed for causes specified in the act (Code, § 124). “An office,” said Chancellor Sandfokd, “ is a public charge or employment, and the term seems to comprehend every charge or employment, in which the public are interested (Wood’s case, 2 Cow. 30, n.). Every office is considered public, the duties of which concern the public (5 Bac. Ab. 180; 2 Tom. Dic. “ Office ”; People vs. Bedell, 2 Hill, 199). Best, Ch. J., in Henley vs. Mayor of Lyme (5 Bing. 91), said, “ in my opinion every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, whether from the crown or otherwise, is a public officer.” I think the official character of the defendants gives them the privileges of public officers as to the place- of trial (Code, § 124, subd. 2). From the affidavit, it seems, the misfeasance or malfeasance in laying out the road, is charged to have been, in part at least, committed in the county of Clinton. The money was drawn at Albany. But the complaint, as to that, is not that it was received, but misapplied.
Are these rules applicable, in a suit by the people? I came to the conclusion, in a recent case, that in many respects, the people, upon obtaining our independence, succeeded to the rights of the crown (People vs. Van Rensselaer, 8 Barb. 189). And I find nothing in The People vs. Arnold (4 Comst. 508), overruling this doctrine. (And see People vs. Thurman, 3 Cow. 16; People vs. Herkimer, 4 id. 345.) And it seems pretty clear that in personal actions, the king could lay his action in any county he pleased (16 Vin. 538; Com. Dig. Prerog. D. 85; Attorney General vs. Churchill, 8 Th. W. 171, and cases there cited. And see Rex vs. Hunt, 3 B. & Ald. 444). But this rule may be abrogated by positive statute; and this, I think, has been done in some suits against public officers, of which this is one.-' Where the statute has not taken away all discretion, no doubt *251regard should be had to the opinions of the attorney general and other public officers acting for the people, as to what would be for the public interest. But nothing appears in this case requiring the court to retain the place of trial contrary to the general rule. Motion granted.