Roberts v. Jenkins — 65 N.Y.S. 385

Majority

p. 385

ROBERTS v. JENKINS et al.

(Supreme Court, Appellate Division, First Department.

June 22, 1900.)

Headnote

" Appeal and Error—Preference on Calendar.

Where the record does not contain the pleadings, nor anything from which a right to preference on the calendar can he determined, an order denying such preference will be affirmed.

Appeal from trial term, New York county.

Action by Annie A. Roberts, executrix of the last will of David H. Roberts, deceased, against Charlotte Jenkins and another. From an

p. 386

order denying plaintiff’s motion for a preference on the calendar, she appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, INGRAHAM, and McLAUGHLIN, JJ.

- Michael Schaap, for appellant.

Thomas C. Ennever, for respondents.

The order denying a motion for a preference of this cause' upon the calendar must be affirmed. The pleadings' in the action are not in the record, nor is there anything from which we are able to determine that the plaintiff is entitled to the statutory preference claimed. That right cannot be inferred simply from the title of an action.

The order must be affirmed, with $10 costs and disbursements.