Lesser v. Dry Dock, East Broadway & Battery Railroad

33 Misc. 388, 67 N.Y.S. 587

• Court: City of New York Municipal Court
• Decided: December 15, 1900
• Status: Published

Opinion

Per Curiam.

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 case on the calendar, cannot defeat this right. Section 791, subdivision 5, of the Code of Civil Procedure 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 a preference was served with the notice of trial, as required by section 793 of the said Code. The claim of preference thus perfected thereupon became an absolute right. Roads v. Metropolitan St. R. Co., 50 App. Div. 160; Levy v. Hanneman, 47 id. 32.

Order appealed from reversed, with ten dollars costs and disbursements, and motion granted, without costs.

Present: McCarthy, O’Dwyee and Sohuchman, JJ.

Order reversed, with ten dollars costs, and motion granted, without costs.