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Rhoads v. Metropolitan St. Railway Co.

63 N.Y.S. 724 Court N.Y. App. Div. Decision date 1900-04-02 English

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p. 724
RHOADS v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Division, First Department.
April 2, 1900.)

Headnote

Motion for Preference — -Laches.
Failure of plaintiff to notice her case for trial for three terms after issue is not such loches as to defeat her motion for a preference, where there was no reason to believe that the case could have been tried at either of those terms; the only condition prescribed by Code Civ. Proc. § 793, being that she should serve notice of application with notice of trial, and that the application should be made at the term at which it was noticed.
Appeal from trial term, New York county.
Action by Elizabeth Bhoads, as administratrix, against the Metropolitan Street-Bailway Company. From an order denying plaintiff’s motion for a preference, she appeals.
Beversed.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLAUGHLIN, and PATTERSON, JJ.
Thomas Allison, for appellant.
Charles F. Brown, for respondent.

The plaintiff was entitled to a preference, under subdivision 5 of section 791 of the Code of Civil Procedure. The only condition prescribed by the statute for obtaining such preference is that the party desiring it shall serve with his notice of trial a notice that an application will be made to the court for the preference, and that an application can only be made when the case shall have been noticed for trial, and at the term at which it is so noticed. Code Civ. Proc. § 793. No other condition is required. The loches which will defeat the motion is only that by which the opposing party has been injured. No such loches appears here. It is quite true that, the issues in this action having been joined in September, it might have been put on the November, December, and January term calendars. But there is no reason to believe that it could have been tried at any of those terms, and it is impossible to see what injury was done to the defendant by delaying putting the case on the calendar until there was a possibility of trying it. The case is within the rules laid down in Bailey v. Miles, 46 App. Div. 607 , 61 N. Y. Supp. 977 ; Levy v. Hanneman, 47 App. Div. 32 , 62 N. Y. Supp. 240 .

The order refusing to grant the preference must be reversed, with $10 costs and disbursements, and the case sent back to the court below, with directions to grant the preference.

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