Opinion
April Term, 1902.
Henry B. Pogson, for the appellant.
Gilbert Ray Hawes, for the respondent.
The plaintiff served his notice of trial for the first Monday in January, and included therein a notice that on that day he would apply for an order preferring the case in pursuance of section 791 of the Code of Civil Procedure. For some reason that motion did not appear on the calendar of motions to be called on that day, the representative of the plaintiff alleging that he attended in court, believing that the said motion was upon the calendar, but that during the call of the calendar he was temporarily called to the Special Term to answer a motion there, and was not present at the call of the motion calendar, nor as far as appears did he at that time move for a preference. Plaintiff subsequently noticed for the 13th of January, 1902, a motion for a preference under the section, and this motion was granted, and from the order granting it the defendant appeals.
There is an affidavit of the representative of the plaintiff's attorney, alleging on information and belief that a note of issue was filed placing the case upon the calendar, but the affidavit of the attorney or clerk who is alleged to have filed the note of issue is not produced, and there is no legal evidence that such a note of issue was filed. If, however, such a note of issue has been filed, and the motion did not appear upon the motion calendar, it was the duty of the plaintiff's attorney to call the attention of the court to that fact before the calendar was called, so that the case could be placed upon the calendar and duly called. If he saw fit to leave the room and be absent when the motion calendar was called, his motion fell. The subsequent motion was not in compliance with section 793 of the Code. The motion not having been brought on for argument at the time noticed, the plaintiff's right to move for a preference was lost and the granting of the motion on a subsequent notice was unauthorized.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
VAN BRUNT, P.J., McLAUGHLIN, HATCH and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.