Majority
p. 507WALKER v. TAMSEN. (City Court of New York, General Term. October 30, 1896.) Argued before VAN WYCK, C. J., and FITZSIMONS and SCHUCHMAN, JJ.
Headnote
1. Trial—Preferred Causes—Personal Preference.The right of a sheriff to preference of trial of an action by or against him in his official capacity (Code Civ. Proc. § 791, subd. 9) is personal to the officer sued or suing in his representative capacity.
2. Same—Statutory Preference—Strict Construction.
An application to prefer a cause on the calendar cannot be entertained at chambers, but it must be made “at the opening of the court,” as required by Code Civ. Proc. § 793.
The memorandum of decision of Judge O’DWYER denying the motion is as follows:
“This is an application for an order giving this cause a preference, the action being against the sheriff. In my opinion the preference given by subdivision 9, § 791, is personal to the officer sued or suing in his representative capacity; and, the sheriff opposing this motion, the same is denied, without costs.”
Appeal from special term.
Action by Edmund W. Walker against Edward J. H. Tamsen, as sheriff, for wrongful levy on and seizure of plaintiff’s goods. From an order denying plaintiff’s application, made at chambers, for an order giving the cause a preference, plaintiff appeals. Affirmed.
W. W. Culver, for appellant.
B. F. Tracy, for respondent.
The order appealed from must be affirmed, for the reason assigned by the justice who made the same, and because of the failure of the plaintiff to make said application at the time and place fixed by section 793 of the Code of Civil Procedure.