Marks v. Murphy — 27 A.D. 160

Majority

p. 160

Abraham Marks, as Administrator, etc., of Leo Marks, Deceased, Respondent, v. Joseph H. Murphy, Appellant.

Headnote

Oalendct/r practice in the county of Mew Torh—a preference is waived by'a failure' to' apply for it on the first -day of the term for which the case is first noticed for trial.

A. motion to place a cause upon the preferred ¡calendar in the county of New York (made under Code Civ. Proc. § 798) must be made at the commencement ' of the term for which the notice of trial is served, and a failure to make the motion at that time operates as a waiver of the-statutory right to a preference. A subsequent notice of trial for another term is futile either to avoid the effect of the waiver or to support a new application to obtain the preference as a matter of right. " "

Appeal by .the defendant, Joseph H. Murphy, from an order .of the Supreme Court, made at the Mew York Trial Term and entered-in the office of "the clerk, of. the county of Mew York on the 10th

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day of Febfuary, 1898, granting the plaintiff’s motion to place the abovq-entitled action on the preferred cause calendaf for trial.

The plaintiff served his notice of trial for the first Monday of January, and with it, notice of a motion for a preference, returnable ón the following day. He obtained his order for a preference upon the first Monday of January, in the absence of the defendant, but as he had given no notice of motion for that day, his order was subsequently vacated. The defendant’s attorney attended upon the day actually specified in the notice of motion, but nothing was then done, as the plaintiff’s attorney was not present. Plaintiff subsequently served another notice of trial for the first Monday of February, together with a new notice of motion for a preference returnable upon that day. The motion was granted and the defendant appeals.

Michael Schaap, for the appellant.

Frank H. Smiley, for the respondent.

Section 793 of the Code of Civil Procedure provides that, in this ' county, a party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, for leave to move the same as a preferred cause.

It is the settled practice in this district that such an application must be made at the commencement of the term for which the notice of trial is served. If not so made, the right to a statutory preference is waived.

In the present case the plaintiff should have moved for a preference upon the first Monday of January. His notice of trial was for that day, and he could apply for such a preference upon no other day. An application for a preference upon the following day was not authorized by the statute. It follows that, by his failure to move upon the first Monday of January, he waived his statutory right. His subsequent notice of trial for the February term was futile to avoid the effect of this waiver or to support another application for a statutory preference. But one notice of trial is required in this county, and all" subsequent notices are unnecessary. ■ (Code

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Civ. Proc. § 977.) The original notice of trial for the January term" was in full force, and the waiver of a right to preference complete, when the plaintiff moved for á preference at the February term." The application should, therefore, have been denied. It was not, as contended, addressed to the discretion of the court, but was made solely as matter of right under the terms of the statute. When so made, parties are held to strict practice. (The People ex rel. Augerstein v. Kinney, 92 N. Y. 647 .)

The order appealed from should, therefore, be reversed, with ten dollars costs and the disbursements of the appeal, and the motion denied, with ten dollars costs.

Wan Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

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

Cases cited

People ex rel. Augerstein v. Kinney 92 N. Y. 647 N.Y. 1883-04-24 p. 162