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Lesser v. Dry Dock, East Broadway & Battery Railroad

67 N.Y.S. 587 Court N.Y. City Ct. Decision date 1900-12-13 English

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p. 587
LESSER v. DRY DOCK, E. B. & B. R. CO. et al.
(City Court of New York, General Term.
December 13, 1900.)

Headnote

Infant Plaintiff&emdash;Preference on the Calendar.
• Code Civ. Proc, § 791, subd. 5, providing that an action is entitled to preference on the calendar in which an infant is the sole plaintiff, entitles an infant plaintiff to a preference as an absolute right in such a case where the claim is perfected by the service of a motion therefor with the notice of trial, as required by section 793; and delay, after issue joined, in placing the case on the calendar, cannot defeat the same.
Appeal from trial term.
Action by Grace Lesser, an infant, by Albert Lesser, her guardian ad litem, against the Dry Dock, East Broadway & Battery Railroad Company and another. From an order denying, on the ground of laches, a motion for a preference on the calendar, plaintiff appeals.
Reversed.
Argued before MCCARTHY, SOHUCHMAN, and O’DWYER, JJ.
p. 588
Louis J. Vorhaus, for appellant.
Henry A. Robinson and John T. Little, for respondents.

The plaintiff, having complied with the only condition prescribed by the statute, is entitled to a preference as a matter of right; and delay, after issue joined, in placing the ease on the calendar, cannot defeat this right. Subdivision 5 of section 791 of the Code provides that an action is entitled to a preference in which an infant is the sole plaintiff. The pleadings show that this is such a cause. The record shows, and it is not disputed, that the notice of motion for preference was served with the notice of trial, as required by section 793 of the 'Code. The claim of preference thus perfected thereupon became an absolute right. Rhoads v. Railway Co., 50 App. Div. 160 , 63 2T. Y. Supp. 724; Levy v. Hanneman, 47 App. Div. 32 , 62 N. Y. Supp. 240 .

Order appealed from reversed, with $10 costs and disbursements, • and motion granted, without costs.

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