Koerner v. Kelley — 107 N.Y.S. 538

Majority

p. 538

(56 Misc. Rep. 605.)

KOERNER v. KELLEY.

(Supreme Court, Appellate Term.

December 12,1907.)

Headnote

Trial—Time—Waives of Preference. '

Though the complaint shows plaintiff entitled to a preference as to time of trial under Code Civ. Proc. § 791, subd. 5, claim to the preference is lost under section 793, and N. Y. City Court Rule 3, by failure to serve notice of application for preference with the notice of trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 32.]

Appeal from City Court of New York.

Action by Charles Koerner, by Moses Koerner, his guardian ad litem, against Hannah E. Kelley. From an order granting plaintiff’s

p. 539

•motion for a preference, defendant appeals. Reversed, and motion •denied.

Argued before GIEDERSLEEVE, P. J., and GUY and BRUCE, JJ.

Carl Schurz Petrasch, for appellant.

Henry ICuntz, for respondent.

Issue was joined in this action on May 35, 1906, and plaintiff on January 39, 1907, noticed the cause for trial for the February term, 1907. No notice of application for a preference was served, although it appeared upon the face of the complaint that plaintiff was entitled to a preference under subdivision 5, § 791, Code Civ. Proc. On May 6, 1907, plaintiff served a notice of motion returnable on the 13th for a preference, and on the 17th this motion was granted and an order entered setting the cause down for trial on the 33d. The plaintiff by his failure to serve notice of application for a preference with his notice of' trial waived any claim to such preferment. Section 793, Code Civ. Proc.; Rule 3 of the Rules of the City Court of the City of New York.

Order reversed, with $10 costs and disbursements, and motion for preference denied, with $10 costs.