Clement v. Mast — 119 A.D. 485

Majority

p. 485

Maynard N. Clement, as State Commissioner of Excise of the State of New York, Appellant, v. Rudolph O. Mast and United States Guarantee Company, Respondents.

Second Department,

May 3, 1907.

Headnote

Practice — action by State Commissioner of Excise entitled to preference —waiver of absolute right to preference.

An action by the State Commissioner of Excise against the holder of "a liquor tax certificate' and his surety for a penalty for a violation of the Liquor Tax Law is entitled to a preference under subdivision 1 of section' 791 of the Code of Civil Procedure. The right of preference is absolute without action by the trial court, if the plaintiff move the cause for trial on the day and time stated in his notice or as soon thereafter as he can be heard. But when instead of standing upon his absolute right to preference the Commissioner moves for an order declaring the action a preferred cause and setting it for trial at a later day in the term, it is a waiver of his absolute right and the granting of the motion is discretionary.

p. 486

Appeal .by the plaintiff, Maynard H. Clement, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at-the Westchester-Trial Term and entered in the office of the clerk of the county of Westchester on the 22d day of January, 1907.

Action l)3 the State Commissioner of Excise againgt the holder of •_ a liquor tax'certificate and his surety for a penalty for a violation of the Liquor Tax Law (Laws of 1896, chap.' 112, as amd.).

Albert 0. Briggs {Herbert II. Kellogg and Mussel - Headley, with him on the brief], for the appellant.

Ho appearance or brief for the respondents.

The plaintiff appeals from an order denying a motion that his action be preferred and set for trial during sthe January, 1907, Trial Term of the Supreme Court held in and. for the county of Westchester. His contention is based upon' the provisions of subdivision 1 of section 791 of the Code Of Civil Procedure. The action is brought by a State officer as such, and is clearly within the provisions of that subdivision, and the notice of trial stated, as required to give the. action a preference, that it would be moved as-a préferred cause on January .7, 1907, at the opening of the court on that day, or as' soon thereafter as counsel could be heard. The provisions of the Code made the action a preferred cause, without action of the trial court," and the plaintiff had an absolute right to : move it for trial oh the day and at the time stated in-his notice, or if. the -court was then otherwise occupied, as soon thereafter as he could be heard, and had he done so his right to- a trial would' be beyond question. Instead of ■ availing himself of his" absolute right, he moved for an order declaring the action a preferred, cause and-setting it for trial at some later day in the term, which in effect waived his right to move the .cause; and sought relief which was within the discretion of the court. Section. 791, subdivision 1, provides : “ If the action or special proceeding is not moved by said attorney for trial or argument on that day, or as soon thereafter in the same term as the court can hear it, the other party may then move the .trial or argument; otherwise it shall not be moved out of its Order at that term except by the special order of the court.”

p. 487

There is nothing in the re.coi’d showing that the plaintiff moved the "case for trial on the day selected' by him, but he did move for the special order authorized by this subdivision, and this motion was addressed to the discretion of the trial court, and we cannot say that it was improperly exercised.

The order must.be affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J., Woodward, Jerks and Miller,JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.