
    Irene E. Hoffman, Appellant, v. Edward Hoffman, Respondent.
    First Department,
    November 22, 1912.
    Trial — change of venue as matter of right—affidavits—demand prerequisite to motion.
    Where in an action for separation the venue is laid in one county and the defendant moves for a change of venue, as a matter of right, upon the ground that at the time of the commencement of the action both parties resided in an adjoining county, an affidavit containing positive allegations has greater probative force than one made on information and belief where the information upon which the belief is founded is not given.
    A written demand must precede a motion to change the place of trial as a matter of right under section 986 of the Code of Civil Procedure. If the defendant fails to give such notice he must be deemed to have waived his right in that regard.
    Appeal by the plaintiff, Irene E. Hoffman, 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 8th day of October, 1912.
    
      I. N. Jacobson, for the appellant.
    
      Arnon L. Squiers, for the respondent.
   Scott, J.:

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 party resided in the county of New York, but both resided in the county of Kings. Defendant, therefore, asks that the change of venue be granted as a matter of strict right, not as a matter of discretion.

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 defendant demands that the action be tried in the proper county, his attorney must serve upon the plaintiff’s attorney with the answer or before service of the answer a written demand accordingly. The demand must specify the county where the defendant requires the action to be tried. If the plaintiff’s attorney does not serve his written consent to the change as proposed by the defendant, within five days after service of the demand, the defendant’s attorney may within ten days thereafter serve notice of a motion to change the place of trial.” It would seem difficult to frame language which would more clearly constitute a demand and refusal a necessary prerequisite to a motion to change the place of trial, and in our opinion the language should be given its plain intent. We are aware that a different opinion was expressed in McConihe v. Palmer (76 Hun, 116), but the force of the opinion as a precedent is much weakened by the fact that the motion for a change of venue was also made and granted for the convenience of witnesses. That case has not been generally followed upon the question now under discussion, and has lately been criticised and questioned by the Appellate Division in the Second Department (Phillips v. Tietjen, 108 App. Div. 9). We think that a written demand must precede a motion to change the place of trial as a matter of strict right under section 986 of the Code of Civil Procedure, and that if a defendant fails to give such notice he must be deemed to have waived his right in that regard.

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.  