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Thompson v. Post & McCord

109 N.Y.S. 724 Court N.Y. App. Div. Decision date 1908-04-10 English

Delivered by SCOTT, J.

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p. 724
THOMPSON v. POST & McCORD.
(Supreme Court, Appellate Division, First Department.
April 10, 1908.)

Headnote

Trial—Calendars—Preference—Application—Service.
Where plaintiff was otherwise entitled to a preference, her right was not lost because her notice of motion therefor was not served with the notice of trial. .
[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 32.]
Appeal from Special Term.
Action by Lena Thompson, as administratrix of the estate of Edward Anderson, deceased, against Post and McCord. Erom an order denying plaintiff’s motion for a preference, she appeals. Reversed.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
Archibald F. Clark, for appellant.
Louis Cohn, for respondent.

The plaintiff appeals from an order denying her motion for a preference. Under section 791 of the Code of Civil Procedure she is entitled to a preference, unless she has waived or lost it. It appears that on January 17, 1908, she served a notice of trial for the February term, and on January 20th served a notice of motion for a preference. The February term commenced on February 3d. Consequently the notice of motion for a preference was served 14 days before the commencement of the term, or within the time in which the notice of trial for that term could have been served. It is contended on behalf of the respondent that plaintiff lost her right to a preference because her notice of motion was not served with the notice of trial. The rule in this department is not so strict. It was held in Rudolph v. Third Ave. R. Co., 54 App. Div. 194 , 66 N. Y. Supp. 603 , that:

“It is not necessary that an application for a preference should be attached to or served at the same time as the notice of trial. It is sufficient if it be served at any time within which the cause might have been noticed for trial. This is what this court held in Gilbert v. Finch, 46 App. Div. 75 , 61 N. Y. Supp. 300 .”

The motion seems to have been denied upon the authority of Am. Exchange National Bank v. Yule Machine Company, 58 App. Div. 320 , 68 N. Y. Supp. 1097 . In that case the plaintiff had served a notice of trial for the April term, 1899, and for the November term, 1900, and in neither case had served a notice of motion for a preference. It was held that it thereby lost its right toa preference at a subsequent

p. 725
term. In the present case zit does not appear that plaintiff had ever before served a notice of trial. In other cases cited by respondent the notice of motion for a preference was not served within the time prescribed for service of a notice of trial.

The plaintiff was entitled to a preference as a matter of right, not of discretion, and the order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion granted for a preference over other causes noticed for the February term, 1908. All concur.

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