Emerick v. Metropolitan Street Railway Co.

38 Misc. 45, 76 N.Y.S. 901

Opinion

Gildersleeve, J.

It appears that plaintiff served notice of trial and notice of motion for a preference, under section 791 of the Code, for the April term, 1902, which were never withdrawn, nor were they, apparently, in any way acted upon at the commencement of the said April term. The plaintiff subsequently served another notice of trial and notice of motion for the May term, 1902. The original notice of trial for the April term was in full force, and a motion to place a cause upon the preferred calendar in this county, under section 793 of the Code, must be made at the commencement of the term for which the notice of trial is served, and a failure to make the motion at that time operates as a waiver of the statutory right to a preference. The subsequent notice of trial for the May term isi futile either to avoid the effect of the waiver or to1 support a new application to obtain the preference as a matter of right. This motion was not addressed to the discretion of the court, but was made as a matter of right under the terms of the statute, and, under such circumstances, the plaintiff must be held to strict practice. Marks v. Murphy, 27 App. Div. 160-162, First Department, Barrett, J. The motion for a preference must be denied.

Motion denied.