138 N.Y.S. 356 | N.Y. App. Div. | 1912
Plaintiff appeals from an order changing the place of trial from the county .of New York to the county of Kings.
The action is for a separation and the venue is laid in the county of New York. The motion is made upon the ground that at the time of the commencement of the action neither
It appears that the parties lived together as husband and wife in the county of Kings until September, 1912, when they separated. Thereafter this action was begun. Defendant swears that upon the separation plaintiff went to live with an aunt in the county of Kings,' where “as the defendant is informed and believes ” she continues to reside. He does not give the information upon which his belief is founded. On the other hand, plaintiff swears positively that at the time of the commencement of the action she resided and ever since has resided at a given address in the county of New York. Of the two affidavits the latter, being made positively, carries greater probative force than the former made on information and belief.
Apart from this consideration we are of opinion that defendant is not now in a position to demand a change of venue as matter of right. It appears that defendant did not, before making his motion, serve upon plaintiff or her attorney a written demand as provided for in section 986 of the Code of Civil Procedure. The service of such a demand is, we think, a necessary prerequisite to a motion of this character, differing in this respect from motions under sections 982 and 983 wherein the place of trial of certain specified actions is fixed by law, and section 981, wherein the court is authorized, in its discretion, to change the place of trial. The present motion is made under sections 984, 985 and 986.
Section 984 provides that an action, not specified in sections 982 or 983, must be tried in a county in which one of the parties resided at the commencement thereof. Section 985 provides that “ If the county designated in the complaint as the place of trial is not the proper county, the action may notwithstanding be tried therein, unless the place of trial is changed to the proper county upon the demand of the defendant, followed by the consent of the plaintiff or the order of the court.” How such a change can be compelled by a defendant is provided in section 986 as follows: “ Where the
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., ' concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.