Levy v. Hanneman — 47 A.D. 32

Majority

p. 32

Pauline Levy, an Infant, by Bertha Levy, her Guardian ad Litem, Appellant, v. Louis Hanneman, Respondent.

Headnote

Laches in moving for 0 preference in the first district —what is not.

The fact that the plaintiff in.an action in the first district in which issue is joined by the service of an answer on October 21, 1899, two days before the expiration of the time within which a note of issue and a notice'of trial and of an application for a preference might be served for the November term, fails to serve them within that time, does not constitute such laches, on her part as.requires the denial of her subsequent application for a preference, notice’of which was served with her notice of trial and note of issue for the December term.

Appeal by the plaintiff, Pauline Levy, an.infant, by Bertha Levy, her guardian ad litem, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of December, 1899, denying her motion to place this cause upon the calendar for preferred’ causes.

Frederick Wiener, for the appellant.

Louis Hanneman, for the respondent.

The action was commenced on July 11,1899, and issue was joined by service of answer on October 21, 1899. The defendant’s time to serve an amended answer did not expire until November tenth.

Thereafter the plaintiff filed a note of issue for the December term and a notice of trial, .together with a notice-of motion for a preference, for the first Monday of December.

There was no opposition to plaintiff’s application for a preference, but the motion’ was denied on the ground of laches.

It thus appears that the note of issue was for the December term, and that the notice of trial and' the motion for a preference were for the first Monday of that term; and in view of. these facts we fail to see upon what laches can be predicated..

It is true that the answer was served on October twenty-first, and the plaintiff had till the twenty-third to notice the case for trial for the November term, but allowing two days to elapse before moving

p. 33

certainly could not be held to be laches. There is no provision requiring a notice of trial for any particular term after the joinder of issue, except that neglect for an unreasonable time to prosecute the action may result in its dismissal.. In regard to a preference, the rule is that the notice of motion for the preference must be served with the notice of trial. This was done here; and the fact that the plaintiff had two days after the service of the original answer in which she might have noticed her case for the November term, did not, for the reasons, stated, make her guilty of laches in not having, within those two days, filed a note of issue and served a notice of trial.

The order, accordingly, should be reversed, with ten dollars costs and disbursements, and the motion' granted, without costs.

Present—-Van Brunt, P. J., Rumsey, Patterson and O’Brien, J,T.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.