#### Assets Collecting Company, Appellant, *v.*The Equitable Trust Company of New York, Respondent.

Second Department,

May 7, 1915.

Trial— change of venue — change from rural county — laches.

Where a party is not entitled to a change of venue as a matter of right the place of trial will not be changed from a rural county to the county of New York or the county of Kings.

A motion for a change of venue to which the party is not entitled as a matter of right will be denied upon the ground of laches, where the motion was not made for more than twenty months after the moving party had noticed the cause for trial.

Appeal by the plaintiff, Assets Collecting Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of March, 1915, changing the venue from Westchester county to New York county.

*Ferdinand E. M. Bullowa,*for the appellant.

*William E. S. Griswold,*for the respondent.

Rich, J.:

While no reason is given as a ground for making the order by the learned justice at Special Term, it is contended by respondent that the order was properly granted because, *first,*
      *146the county of Westchester was not the proper county; *second,*that this is a transitory action and should be tried where the transaction occurred, and, *third,*upon the ground of the convenience of witnesses.

The action was commenced by the service of the summons and complaint in December, 1911. The answer was served January 21, 1913, and plaintiff’s reply was served May 6, 1913, and the case is now on the calendar of the Westchester trial court for trial, it having been noticed by both parties in 1913. On the 13th day of January, 1915, the parties stipulated that the action “be set for trial on the calendar of the Trial Term of the Supreme Court held in and for the county of Westchester on the 15th day of February, 1915, and that said action shall be so marked for trial on the call of any calendar on which it may appear prior to that date. ”

The defendant was not entitled to the order as a matter of right, upon the ground that neither party to the controversy resided in the county of Westchester, because no demand for a change of the place of trial was served before or with the answer, as required by section 986 of the Code of Civil Procedure. We do nob decide, however, that the plaintiff does not reside in Westchester county. It has been held so often that it seems to be unnecessary to cite authorities to sustain the proposition that the place of trial of an action will not be changed from a rural county to either the county of New York or the county of Kings, and the defendant was not entitled to the order upon that ground. After noticing the case for trial, and after it was upon the calendar, the defendant secured a delay of more than twenty months before moving to change the place of trial, and now, after obtaining the benefit of this long delay, the motion ought to have been denied upon the ground of laches.

The order must, therefore, be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.