Opinion
January Term, 1900.
Frederick Wiener, for the appellant.
Louis Hanneman, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON and O'BRIEN, JJ.
The action was commenced on July 11, 1899, and issue was joined by service of answer on October 21, 1899. The defendant's time to serve an amended answer did not expire until November tenth. Thereafter the plaintiff filed a note of issue for the December term and a notice of trial, together with a notice of motion for a preference, for the first Monday of December.
There was no opposition to plaintiff's application for a preference, but the motion was denied on the ground of laches.
It thus appears that the note of issue was for the December term, and that the notice of trial and the motion for a preference were for the first Monday of that term; and in view of these facts we fail to see upon what laches can be predicated.
It is true that the answer was served on October twenty-first, and the plaintiff had till the twenty-third to notice the case for trial for the November term, but allowing two days to elapse before moving certainly could not be held to be laches. There is no provision requiring a notice of trial for any particular term after the joinder of issue, except that neglect for an unreasonable time to prosecute the action may result in its dismissal. In regard to a preference, the rule is that the notice of motion for the preference must be served with the notice of trial. This was done here; and the fact that the plaintiff had two days after the service of the original answer in which she might have noticed her case for the November term, did not, for the reasons stated, make her guilty of laches in not having, within those two days, filed a note of issue and served a notice of trial.
The order, accordingly, should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.