Ritchie v. Seaboard Nat. Bank

32 N.Y.S. 1073, 12 Misc. 146, 66 N.Y. St. Rep. 357

Opinion

BISCHOFF, J.

The determination below that the plaintiff’s

motion for a preference should be denied is clearly to be supported. In order that the right to a preference under section 791 of the Code of Civil Procedure may be preserved and successfully invoked, it is essential that the party desiring the preference “serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, for leave to move the same as a preferred cause.” Code Civ. Proc. § 793. In the present case, no notice of trial having ever been served, it results that the plaintiff’s failure to comply with the statutory requirements deprived him of the benefit sought to be availed of. Fox v. Quinn, 12 N. Y. Supp. 725. Order affirmed, with costs.