¶1Motion by plaintiff for an order striking out the counterclaim of defendant, without prejudice to the bringing of another action.
¶2The motion is denied. While it is true that the counterclaim sets forth a cause of action which must be tried in Suffolk County under the provisions of subdivisions 5 and 9 of section 183 of the Civil Practice Act, section 186 of the Civil Practice Act and rule 146 of the Buies of Civil Practice provide that, although the county designated in the complaint as the place of trial is not the proper county, the action may be tried therein unless the place of trial is changed to the proper county upon timely demand of the defendant followed by the consent of plaintiff or order of the court. (Reichenbach v. Corn Exchange Bank Trust Co., 249 App. Div. 539.) By the same reasoning, the counterclaim may be tried in Queens County, in the absence of a demand and consent, or order of the court.