Rhoads v. Metropolitan Street Railway Co.

50 A.D. 160, 63 N.Y.S. 724

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1900
• Status: Published

Opinion

Per Curiam :

The plaintiff was entitled to a preference under subdivision 5 of section 791 of the Code of Civil Procedure. The only condition prescribed by the statute of obtaining such preference is that the party desiring it shall serve with his notice of trial a notice that an application will be made to the court for the preference, and that application can only be made when the case shall have been noticed for trial, and at the term at which it is so noticed. (Code Civ. Proc. § 793.) No other condition is required.

The laches which will defeat the motion is only that by which the opposing party has been injured. No such laches appears here.

It is quite true that the issues in this action having been joined in September, it might have been put on the November, December and January term calendars. But there is no reason to believe that it could have been tried at any of these terms, and it is impossible to see what injury was done to the defendant by delaying putting the case on the calendar until there was a possibility of trying it. The case is within the rules laid down in Bailey v. Miles (46 App. Div. 607); Levy v. Hanneman (47 id. 32).

The order refusing to grant the preference must be reversed, with ten dollars costs and disbursements, and the case sent back to the court below, with directions to grant the preference.

Present—Yah Brunt, P. J., Barrett, Rumsey, Patterson and McLaughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and case sent back to court below, with directions to grant preference.