p. 603RUDOLPH v. THIRD AVE. R. CO.(Supreme Court, Appellate Division, First Department.Headnote
Tbial—Preference—Notice of Application.Notice of an application for a preference under Code Civ. Proe. § 791, snbd. 5, providing for a preference, among other instances, in cases where an executor or an administrator is the sole plaintiff or defendant, need not be attached to or served at the same time as notice of the trial.
Appeal from trial term, New York county.
Action by Mary Rudolph, administratrix of Ernest Rudolph, against the Third Avenue Railroad Company. From an order denying a motion for a preference, plaintiff appeals.
Argued before VAN BRUNT, P. J., and RUMSEY, McLAUG-H-LIN, PATTERSON, and O’BRIEN, JJ.Vincent P. Donihee, for appellant.
Leo J. Kersburgh, for respondent.
It appears from the papers used upon the motion that on the 21st of April, 1900, a notice of trial for the first Monday of May was served on the defendant’s attorney, and two or three hours later on the same day plaintiff’s attorney served a notice that a motion would be made, also on the first Monday of May, for a preference on the calendar. The preference was claimed under subdivision 5 of section 791 of the Code of Civil Procedure. The motion for a preference was denied upon the ground that the notice claiming the preference was not served with the notice of trial. It is not necessary that the notice of 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 could be noticed for trial. This is what this court held in Gil
p. 604bert v. Finch, 46 App. Div. 75 , 61 N. Y. Supp. 300 , and on that authority the order appealed from must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.