Montgomery v. Daniell — 91 A.D. 18

Majority

p. 18

Mary Montgomery, Appellant, v. John Daniell, Jr., and Others, Respondents.

Headnote

Prefes’ence on the trial calendar in New York city — after a cause has been noticed for trial and a note of issue fled, a note of issue cannot be filed for a succeeding term with notice of a motion for a preference.

The plaintiff in an action brought to determine the validity of the probate of a will noticed the case for trial at the October term and filed a note of issue for that term. The defendants did not serve any notice of trial or file any note of issue for the October term, but served a notice of trial for the Decetnber term accompanied by a notice of motion for a preference upon the calendar. They also filed a note of issúe for that term.

Meld, that the action of the defendants in. noticing the case for the December term and in filing another note of issue was not authorized by section 977 of the Code of Civil Procedure, and that the court was without authority to grant the motion for a preference. '

p. 19

.Appeal by the plaintiff, Mary Montgomery, 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 21st day of December, 1903, granting a motion made by certain of the defendants that the above-entitled action be preferred for trial.

William D. Reed, for the appellant.

Abel E. Blackmar, for the respondents.

This action was brought under section 2653a of the Code of Civil Procedure to determine the validity of the probate of a will. Issue was joined on the 16th of June, 1903. On the 31st of July, 1903, the case was noticed for trial by the plaintiff for the next term of the court, which commenced on the first Monday of October, 1903. The plaintiff duly placed the cause upon the calendar for trial by the filing of a note of issue for said October term. The defendants served no notice of trial for the October term, but on the 19th of November, 1903, some of the defendants, who had appeared in the action by attorney, served a notice of trial for the December term, accompanied by a notice of motion for a preference over all issues. They also filed a note of issue for December. Upon the coming on of the motion for preference the same was granted, and from the order thereupon entered this appeal is taken.

Upon reference to the provisions of section 977 of the Code of Civil Procedure we do not see what authority there was for the defendants to place the cause upon the calendar a second time. That section reads as follows: “ At any time after the joinder of issue, and at least fourteen days before the commencement of the term, either party may serve a notice of trial. The party serving the notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys,, the time when the last, pleading was served, the nature, of the issue, whether of fact or of law, and if an issue of fact, whether it is triable by a jury, or by the court without a jury. The note of issue must be filed at least twelve days before the commencement of the term. The clerk must thereupon enter the cause upon the calendar according to the date of the issue, * * * and the action must remain on the calendar until it is disposed of.”

p. 20

The plaintiff in this action complied with the provisions of this . section by serving her notice of trial for the October term and placing the cause upon the calendar for that term. Then, under the Code, it went upon the calendar for the October term, and is required to remain there until it is disposed of. There is no provision whatever for the noticing of the case for another term and the filing of another note of issue and securing another place upon the calendar. Therefore, there is no provision authorizing the filing of a new note of issue for the December term, as was done by the defendants, and in order that a notice of trial could be of any value it is necessary that it should be accompanied by a note of issue. The defendants in this action had ample opportunity' to notice this cause for the October term, and to claim their preference at the term for which the note of issue was being filed, but they neglected so to do, and they cannot subsequently change the position of the cause upon the calendar by the filing of a new note of issue. We think, therefore; that the court was without authority to grant the motion for a preference.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, McLaughlin, Hatch and Laughlin, JJ., concurred.

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