
    John Edwards Larkin, Respondent, v. Watson Wagon Company, Appellant.
    
      Ohange of venue for the convenience of witnesses — a demand need not be served before notice of a motion therefor.
    
    A defendant who desires to make, a motion,, under subdivision 3 of section 987 of the Code of Civil Procedure, to change the venue of the action for the convenience of witnesses, need not ‘ serve a demand to change the place of trial with or before service of the answer.” •
    
      Appeal by the defendant, the Watson Wagon Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of October, 1901, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Madison for the convenience of witnesses.
    
      William 0. Gantz, for the appellant.
    
      Montague Lessler, for the respondent.
   McLaughlin, J.:

This action was brought to recover a sum alleged to be due the plaintiff for the purchase price of a quantity of lumber sold by the plaintiff’s assignor to the defendant, a domestic corporation, having its office and principal place of business at Canastota, in the" county of Madison, this State. Where the plaintiff resides does not appear. The venue of the action was laid in the county of New York. After issue had been joined the defendant moved to change the place of trial to the county of Madison for the eonveniénce of witnesses.

From the moving papers-it appeared that several witnesses were necessary tó establish the defense set up in the defendant’s answer; all of whom, from the allegations contained in such papers, resided in the county of Madison, which allegations were not denied by the plaintiff, nor did he claim that there was a witness outside of the county of Madison necessary to establish either the cause of action alleged in the complaint or the defense set up in the answer. Nevertheless, the motion was denied, as appears from the order appealed from, upon the ground that the defendant had neglected to serve a demand to change the place of trial with or before service of the answer.” No such demand was necessary. The motion was made under subdivision 3 of section 987 of the Code-of Civil Procedure, and when a motion is made under this section it is not necessary to make a demand prior to the making of the motion. A demand is only necessary when the defendant demands that the place of trial be changed as a matter of right and not as a matter of discretion.

Here the cause of action arose in the county of Madison where one of the parties and every witness so far as appears reside. .'Under such circumstances it would seem as if the motion should' have been granted.- But the court did not pass upon the merits of the motioti. Its. decision was based upon .the- fact that a demand to have the place of trial changed had not been- served prior to or' with the answer, This -was error and necessitates a reversal of the-order; but, inasmuch as the court did not pass upon the merits, we think instead of granting the motion the same should be remitted to the Special Term in order that the merits may be passed upon.

Order reversed, with ten dollars costs and disbursements, and the motion remitted to the Special Term. .

Yah Brunt, B. J., Ingraham and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs ¡ and disbursements, and motion remitted to the Special Term.  