It is necessary to add but little to the opinion of Justice Barrett, rendered by him on deciding the motion to change the venue in these cases. Although acts of fraudulent combination are charged against the defendants to accomplish a condition of things leading to the formation of the contract ultimately made with Kingsley and Keeney, nevertheless the gravamen of the complaint begins with the conduct of the defendants while acting officially, because prior to that time the alleged scheme had not been consummated, and could not be without the contract which was made. The same observation applies to the Hempstead reservoir.
The contemplated fraud in reference thereto was not initiated' *236until Keeny obtained the contract alleged. It is, it may be said, wholly immaterial whether these contracts were the result of a combination antecedent to the passage of the acts of May 5, 1870, and February 18, 1871, and the action of the common council, or subsequent thereto, if characterized properly.
The defendants’ responsibility for that violation of duty would be the same. The acts which form the basis of the charges presented by the complaint were committed virtute officii.
The defendants were acting as public officers within their official sphere) within the scope of their authority, when the contracts were made, and this, as shown by Justice Barrett, secures to them the right given by section 124 of the Code. It is no answer to an application for the privilege accorded by this law, that the plaintiffs cannot have a fair trial in Kings county. This view, which is expressed by Justice Barrett, is sustained by the authorities. (Moore v. Gardner, 5 How. Pr., 243; Wood v. Hollister, 3 Abb. Pr., 16, note; Hubbard v. National, etc., 11 How. Pr., 149 ; The International, etc., v. Sweetland, 14 Abb. Pr., 240; People v. Tweed, 13 Abb. [N. S.], 426.) Where the impossibility of obtaining an impartial trial is the ground of a motion to change the place of trial, it should not be made till after issue joined. (2 Wait’s Pr., 630, and cases cited.) The reason of the rule relates, it is true, more to the form, perhaps, than the substance. It is that the action must be placed first in the proper county.
The starting point must, in other words, be correctly designated, and then the usual incidents of an action may occur.
When the cause is transferred to Kings county, therefore, the plaintiffs may then in turn ask for a change of the place of trial to some other county, in which there will be no prejudice from which they can suffer. The cause must be at issue then, however, which is not the case now, and the character of the issiies may require serious considerations in determining the propriety of another change of the place of trial. For these reasons, we think the order appealed from must be affirmed, with ten dollars costs, and the disbursements of the appeal.
Davis, P. J., and DaNiels, J., concurred.Order affirmed, with ten dollars costs and disbursements.