¶1This is an appeal from an order granting defendant’s motion to change the venue of this action from Miagara to Schenectady county, made solely upon the ground that a determination affecting the title to real property situate in Sphenectady county is involved within the meaning of section 982 of the Code of Civil Procedure.
¶2If any cause of action is stated in the complaint it is for the dissolution of an alleged copartnership and for an accounting. Mo other relief is demanded and only such facts are alleged as are assumed to be pertinent to that issue. Certainly a cause of action in partition is not alleged because it is distinctly stated that the plaintiff is not in possession of the real estate in Schenectady county. (Code Civ. Proc. § 1532.) The fact that certain property which it is claimed belongs to the copartnership consists of real estate and is situate in Schenectady county does not entitle the defendant to a change of venue under section 982 of the Code of Civil Procedure, notwithstanding it may become necessary in such action to determine whether or not such real property belongs to the copartnership, and to adjust the rights of the copartners therein or to the proceeds thereof upon an accounting. (Simpson v. Simpson, 41 App. Div. 449 ; Barnes v. Barnhart, 102 id. 424.) The mere fact that the title to real estate may have to be determined in an action for dissolution of a copartnership is simply an incident to the main issue, and does not bring the case within the section of the Code referred to. (Hogg v. Mack, 53 Hun, 463.) It seems to be well settled that the right to a change of venue under the section of the Code in question must be determined upon the allegations of the complaint; that it is not permissible for a defendant to procure such change because of denials or affirmative allegations in *131his answer. Otherwise the venue of every action brought to dissolve a copartnership and for an accounting, where it is alleged that the copartners are the owners of real property in a county other than that in which the venue is laid, must be changed whenever a defendant sees lit to deny such real property belongs to the copartnership.
¶3The question presented by this appeal is, as it seems to me, very important. If a member of a copartnership brings an action for its dissolution and for an accounting, and alleges in his complaint that such copartnership owns certain real estate in a county other than that in which the venue is laid, if his copartner denies the allegation in respect to such real property, that fact does not entitle the defendant to a change of venue to the county where such real estate may be situate. If in such action it should appear by the allegations of the complaint that the copartners owned real estate situate in many counties of the State, it would be difficult to determine in which of the counties such action should be prosecuted to final judgment. I think the proposition is not supported, either by authority or sound reasoning.
¶4But it is said in the prevailing opinion that the complaint does not allege facts sufficient to establish the existence of a copartnership, or at least that the property therein referred to is held or owned as partnership property. If such be the fact, then certainly the venue of the action ought not to be changed, but rather a demurrer to the complaint should be interposed, or, if the case proceeds to trial, a motion should be made to dismiss because of lack of proof to support the allegations, of the complaint. But in such case it would be highly improper-, as it seems to me, to compel the plaintiff to go to a distant county to have such questions settled. If upon the trial the plaintiff were given permission to amend his domplaint in such manner as to bring it within the provisions of the section of the Code it would then be time to entertain a motion for a change of venue, and the court could impose such conditions as would protect the rights of the defendant in the premises. But it is evident from all the allegations óf the complaint in this case, and from the demand for relief, that the plaintiff only seeks and desires to dissolve a copartnership which he alleges exists between himself and the defendant, and to procure an accounting as between them. Under *132such circuipstances, he ought not to be compelled to go to Schenectady county to have those issues determined, simply because he alleged that certain property which he claims belongs to the copartnership is situate in that county, and which allegation is put in issue by the denial of his copartner, the defendant.
¶5The order appealed from should be reversed, with -costs.
¶6Order affirmed, with ten dollars costs and disbursements.