Opinion
April 10, 1908.
Archibald Foote Clark, for the appellant.
Louis Cohn, for the respondent.
The plaintiff appeals from an order denying her motion for a preference. Under section 791 of the Code of Civil Procedure she is entitled to a preference unless she has waived or lost it. It appears that on January 17, 1908, she served a notice of trial for the February term, and on January twentieth served a notice of motion for a preference. The February term commenced on February third, consequently the notice of motion for a preference was served fourteen days before the commencement of the term, or within the time in which the notice of trial for that term could have been served. It is contended on behalf of the respondent that plaintiff lost her right to a preference because her notice of motion was not served with the notice of trial. The rule in this department is not so strict. It was held in Rudolph v. Third Ave. R.R. Co. ( 54 App. Div. 194) that "it is not necessary that the notice of an application for a preference should be attached to or served at the same time as the notice of trial. It is sufficient if it be served at any time within which the cause could be noticed for trial. This is what this court held in Gilbert v. Finch ( 46 App. Div. 75)." The motion seems to have been denied upon the authority of American Exchange Bank v. Yule Machine Co. ( 58 App. Div. 320). In that case the plaintiff had served a notice of trial for the April term, 1899, and for the November term, 1900, and in neither case had served a notice of motion for a preference. It was held that it thereby lost its right to a preference at a subsequent term. In the present case it does not appear that plaintiff had ever before served a notice of trial. In other cases cited by respondent the notice of motion for a preference was not served within the time prescribed for service of a notice of trial. The plaintiff was entitled to a preference as a matter of right, not of discretion, and the order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted for a preference over other causes noticed for the February term, 1908.
INGRAHAM, McLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.