Blumenthal v. Schweinburg — 51 A.D. 378

Majority

p. 378

Sigmund Blumenthal, Appellant, v. Emil Schweinburg, Respondent.

Headnote

Galendwr preference—laches in moving therefor.

The plaintiff, in an action for slander in which issue was joined, on October 81, 1899, by the service of an answer, moved for a preference; under subdivision 11 of section 791 of the Code of Civil Procedure, at the February term, 1900. It appeared that the January term, 1900, was the first term held after the expiration of the defendant’s time to serve an amended answer, and that the plaintiff was in Europe during that month.

Held, that the plaintiff was not guilty of laches in making the motion.

Appeal by the plaintiff, Sigmund Blumenthal, 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 16th day of February, 1900, denying his motion to place the cause upon the calendar for preferred causes.

The action was for slander.

Frederick Wiener, for the appellant.

Arthur Furber, for the respondent.

The order denying the plaintiff’s motion to put this cause- upon the preferred calendar must be reversed. It appears from the memorandum of the justice who made the order that the motion was “ denied on the ground of laches.” The action was entitled to a preference under subdivision 11 of section 791 of the Code of Civil Procedure. The plaintiff’s practice conformed to the requirements of the statute, and his right to a preference was not lost by neglect. Issue- was joined on October 31, 1899, by the service of the defendant’s answer. The time to serve an amended answer would not have expired until November twentieth. The first term for which the case could have been safely noticed for trial, in view of what was decided in Haskin v. Murray ( 29 App. Div. 374 ), was January, 1900, and during that month the plaintiff was absent in Europe. Notice of trial for February, accompanied by an affidavit stating the claim for a preference, was served for the.February term. a There is nothing in the practice which requires a party to notice his cause for trial for the first term after it shall be at issue, or imposing any penalty .upon the plaintiff for a failure to so notice it.” (Bailey v. Miles, 46 App. Div. 608 .) “ 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.” (Levy v. Hanneman, 4App. Div. 32.)

Under the circumstances of this case there was no neglect or delay for an unreasonable time. The case was noticed for trial and a preference was claimed immediately upon the plaintiff’s return from Europe, and with but one term intervening between the time at which notice of trial could with safety have been given and the term for which the notice was actually served.

Order reversed, with ten dollars costs and disbursements. Motion for a preference granted, without costs.

Present — Van Brunt, P. J., Rumsey, Patterson, Ingraham and Hatch, JJ.

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