Opinion
Argued October 19, 1896
Decided October 27, 1896
Patrick J. O'Bierne for appellants.
Ferdinand Eidman, Jr., for respondents.
A party is only entitled to a preference upon the calendar, under subdivision 5 of section 791 of the Code of Civil Procedure, where, in one of the capacities mentioned therein, he is the sole plaintiff or the sole defendant. Here other persons are joined as plaintiffs with the executor and executrix, and while those persons may be the executor and executrix, suing in their individual capacities, that fact will not serve to bring the case within the preference as accorded by the Code. What is mentioned with respect to the subject of the action does not warrant us in advancing the cause for a hearing.
The motion is denied, but without costs to either party.
All concur.
Motion denied.