
    Ellen Phillips, Appellant, v. Christian F. Tietjen, Respondent.
    
      Verme of a transitory action — the court cannot change it of its own motion.
    
    Where a transitory action is brought on for trial, at a term of court held in the county in which the venue is laid, the judge presiding in such court may not, of his own motion, and without any request from either of the parties, strike the case from the calendar simply because it appears that both the parties are residents of another county.
    Appeal by' the plaintiff, Ellen Phillips, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 14th day of June, 1905, denying the plaintiff’s motion to restore the action to the general calendar of the court in that county; and changing the place of trial of the action from the county of Queens to the county of Eew York.
    
      
      Ira Leo Bamberger [Abraham Oberstein, with him on the brief], for the appellant.
    
      Charles Melville Weeks, for the respondent.
   Hirschberg, P. J.:

The action was commenced in May,'' 1904, to recover damages for personal injuries charged to the defendant’s negligence. The venue was laid in Queens county, whére neither party then resided. At that time both parties resided .and have ever since resided in the county of Hew York. The defendant, however, made no demand for a change of the place of trial, but served an answer in due season and the casé was placed on the general calendar for trial in Queens county in October, 1904. At the April term in 1905 the- case was ready for trial but was not reached. At the June term it was reached and a jury impaneled to try it, but the learned'trial justice discovering that tlie parties resided in the county of Hew York struck the case from the calendar of liis own motion. Subsequently vthe plaintiff moved at Special Term for an order restoring the case to the calendar, which motion the court denied, and thereupon of its own motion changed the place of trial to the county of Hew York.

The ' court could not lawfully -change the place. of trial in the circumstances detailed. By section 985 of the Code of Civil Pro- ' cedure it is expressly provided 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.The clear intention of the provision is that the consent of the parties to try the action- in the county designated is to be effective; and that the defendant, by a timély demand for a change of the place of trial, -may procure such change by either the plaintiff’s consent or by an order of the court, such consent or order, however, to follow the demand. This intention is manifested further by the provisions of. section 986 of the Code of Civil- Procedure, which require that the demand shall- be served either before or with the answer; that the plaintiff’s consent to the .proposed change of the place of trial must be served within five days after the service of the demand ; and that in default of such consent the defendant’s attorney may move for the order within ten days after the time limited for the service of the consent. It can hardly be doubted that in the absence of a consent and after the expiration of the period designated for the defendant’s motion, a motion to change the' place of trial to the proper county could be denied for laches.

The provisions of section 987 of the Code of Civil Procedure authorizing the court by order to change the place of trial in the cases designated, are not absolute in the sense of conferring the power irrespective of the desires or the conduct of the parties, but are to be read in connection with the preceding sections-. I find nothing to the contrary in the cases apparently relied on by • the court at Special Term, viz., Gorman v. South Boston Iron Co. (32 Hun, 71) and Lyman v. Gramercy Club (28 App. Div. 30). In each of these cases a motion was made by the defendant for a change of the place of trial, and the court confined itself to the province of hearing and determining. In McConihe v. Palmer (76 Hun, 116) the place of trial was changed without a previous demand, but it was changed upon motion in the orderly administration of justice. Mr. Justice Rumsey in his work on Practice (Vol. 2 [2d ed.], p. 138) says : The language of section 986 would seem to leave no room for doubt that the demand is an essential prerequisite to a motion to change the place of trial to the proper county. In McConihe v. Palmer (76 Hun, 116), however, it was held that the section was directory only and not mandatory, and that the change could be ordered notwithstanding the absence of a demand. An intimation to the same effect is found, also,, in Taylor v. Smith (11 N. Y. Supp. 29, 30). This doctrine is contrary not only to the earlier cases (Van Dyck v. McQuade, 18 Hun, 376; Houck v. Lasher, 17 How. Pr. 520; Vermont Cen. R. R. Co. v. Northern R. R. Co., 6 How. Pr. 106) expressly in point, but also to some of more recent date (Spaulding v. Am. Wood Board Co., 5 App. Div. 620; s. c. 39 N. Y. Supp. 203), as well as the cases of more recent date in which the necessity of a demand has been assumed in deciding whether such demand or the notice of motion was timely (Penniman v. The Fuller & Warren Co., 133 N. Y. 442; Ganz v. Edison Electric Illum. Co., 79 Hun, 409; Harmon v. Van Ness, 56 App. Div. 160; Binder v. Met. St. Rwy. Co., 68 App. Div. 281), and, it is apprehended, does not represent the law.”

In Houck v. Lasher (17 How. Pr, 520), a case which arose under the former Code of Procedure, the provisions of which were practically identical with those now in force, it was held that- the court had no authority on a motion to change the. place of trial .for the convenience of witnesses to order it changed on the ground that the proper county had not been designated in the complaint, where no previous demand for such change had been made. The court :said (p. 522): “If the proper county has not.been selected, the defendant has the right to have the place of'trial changed. But, to secure this right, two things are necessary. First, he must within a limited time, make the demand prescribed by the 126th section of the Code, and then, the demand having been made, unless the change be made by consent of parties, an order of the court directing the change must be obtained. 'Unless both these requirements are complied with, the plaintiff may bring his action to trial in the county selected by him. for that purpose.”. ' ‘

The order should be reversed, with ten dollars costs and 'disburse- • ments, and the motion to restore the cause to the general calendar in Queens county granted, with ■ costs. >

Woodward, Jenks, Rich and Miller, JJ., concurred. .

Order reversed, with ten dollars costs and disbursements,’ and motion to restore the cause- to the general calendar in Queens county granted, with costs.  