Fox v. Quinn

12 N.Y.S. 725, 1890 N.Y. Misc. LEXIS 2653

Opinion

Daly, J.

By the amendment to section 793 of the Code passed in 1888, (chapter 497, Sess. Laws,) causes entitled to a preference cannot have such preference upon the calendar unless notice of application therefor is served with the notice of trial. Before the amendment in question, those cases in which the right to a preference depended upon facts which did not appear in the pleadings could only have their preference upon the calendar by the procuring of an order made upon notice, and such order had to be. served with, or before, the notice of trial; and it was held that, where a notice of trial was served before making the motion, the right to have the cause preferred was waived. City Nat. Bank v. Nat. Park Bank, 62 How. Pr. 495. Under the present practice, the notice of motion in every case must be served with the notice of trial, and upon the same principle upon which the above decision was made, the right to have the cause preferred must be deemed to be waived if this is not done. I am referred to the order made in the case of Matthews' Adm’r v. Gebhardi,1 in the supreme court, (May 3,1889,) where a motion for preference was granted although made after service of notice of trial: but that case is not distinguished from the decision of the same court, in the same department, in the Bank Case, above cited; and, under the stringent provisions of the amendment of 1888, I think we are' bound to hold, upon the authority of the latter case, that the service of a notice of trial without the notice for a preference is a waiver of the preference, and that it cannot be subsequently claimed. The service of a new notice of trial does not revive the right to a preference after it has been so waived, there being no necessity for such new notice of trial. Motion denied, with $10 costs to abide event.

1 No opinion.