Davis v. Westervelt — 76 N.Y.S. 695

Majority

p. 695

(38 Misc. Rep. 13.)

DAVIS v. WESTERVELT et al.

(Supreme Court, Trial Term, New York County.

May, 1902.)

Headnote

-Calendar—Preferences—Action by Trustee in Bankruptcy.

The preference given by Code Civ. Proc. § 791, subd. 5, to an action brought by a sole trustee in bankruptcy, will not be permitted to advance such an action over issues noticed for trial at prior trial terms alone on such statutory grounds; but it will be entitled to preference only over issues of the same term as that for which it was noticed.

Action by James J. Davis, trustee, against Walter T. Westervelt and others.

Motion for preference denied.

Boothby 8c Baldwin, for the motion.

This is an application for a preference under section 791, subd. 5, of the Code. There is no opposition to the motion. The plaintiff, however, relies wholly upon the ground that the sole plaintiff is a trustee in bankruptcy, and gives no other reason for asking the preference than that such a case is preferable under section 791, subd. 5, of the Code. This is not enough. Some other fact than that the action is one specified in section 791 of the Code must be shown to justify the court in preferring the action over other issues than those of the present term. See Morse v. Publishing Co. (Sup.) 75 N. Y. Supp. 976 (Ingraham, J.). Motion granted giving the cause a preference over the issues noticed for the present May term in its regular order.

Motion denied.