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Gegan v. Union Trust Co.

120 A.D. 382 Court First Department, Decision date 1907-06-21 English

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p. 382
Mary D. Gegan, Respondent, v. Union Trust Company of New York, as Executor, etc., of John H. Drake, Deceased, Appellant.
First Department,
June 21, 1907.

Headnote

Practice—preference in action against executor—reasons therefor must be shown — waiver, of right to preference.
In the first department a plaintiff is not entitled to a preference' upon the mere ground that,defendant is.an executor;. he must show special facts and circumstances which warrant the court in the exercise of its discretion to gran^ the preference.
.Moreover, a right to a preference is lost by failure to assert it when the cause is first noticed for trial and placed upon the calendar. It is not revived by the service of an amended complaint which merely amplifies, but does not change the original cause of action.
• Appeal by the defendant, the Union Trust Company of New York, as executor, etc., of John H. Drake, deceased, 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 28th day of May, 1907, granting plaintiff’s motion to have the trial of the issues herein given a preference upon the ground that the sole defendant is an executor, and setting the case down for trial in Special Term, Part 3, on the 24th .day of June, 1907.
Benjamin A. Morton, for the appellant.
Franklin Bartlett, for the respondent.

Eo special facts or circumstances — other than the fact that the. defendant is an executor — are shown in the moving papers, to warrant the exercise of the discretion. of the court, and, therefore, under the well-established practice in this department, the plaintiff was not entitled to a preference excepting over non-preferred issues noticed for the same term. (Morse v. Press Publishing Co., 71 App. Div. 351 ; Martin's Bank, Ltd., v. Amazonas Co., No. 1, 98 id. 146.) It does not clearly appear whether or not the order made constitutes a preference in the trial of the issues in this action over issues previously placed upon the calendar, but it would seem likely that that might result from fixing the trial of the action for a day certain. Moreover, the plaintiff has lost his right to a preference by failure to assert it when the issues were first noticed for trial and .placed upon the calendar. (Mearles v. Murphy, 27 App. Div. 160 ; Eckhard v. Jones, 45 id. 562; Williamson v. Standard Structural Co., 48 id. 186; American Exchange Bank v. Yule Machine Co., 58 id. 320; Meyerson v. Levy, 117 id. 475.) Issue was first joined herein on the 18th day of August, 1897. The plaintiff noticed the issues for trial for the first Monday of October, 1899, and again for the May term, 1903, without giving notice of a claim for preference. The plaintiff was permitted to serve an amended complaint on the 19th day of May, 1906, amplifying, but without changing the original cause of action. After the service of the answer to the amended complaint the plaintiff again noticed the issues for trial at the May term, 1907, and then gave notice of a claim for preference. This was too late. The amendment of the pleading, which did not change the cause of action, did not revive the right which was lost by the failure to assert it when the first notice of trial was served. (Ziegler v. Trenkman, 26 Misc. Rep. 432 .)

If follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — Ingraham, McLaughlin, Laughlin, Clarke and S@ott, JJ.

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

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