Opinion
April Term, 1903.
Harold Nathan, for the appellant.
Martin Saxe, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, INGRAHAM and HATCH, JJ.
This action was brought for the collection of arrears of personal property taxes, assessed for the year 1898 at the sum of $100.50. The defendant was served with a summons and complaint in the action on September 9, 1901. The defendant's time to answer was extended at various times down to October 23, 1902. On October 22, 1902, the defendant served his answer and on January 6, 1903, he served an amended answer. On January 19, 1903, the plaintiff served a notice of trial, which also contained a notice of motion to place the cause upon the preferred calendar, which notice read as follows, to wit: "And at the same time a motion will be made on the pleadings at Part II of said court to give this action a preference upon the calendar, under the provisions of the Code of Civil Procedure, Section 791, Subdivision 2."
The point made by the appellant is that the notice for preference was not in compliance with the Code, in that it did not state the particular day in the term at which it would be moved. Whether the notice is sufficient in that respect it is not necessary at this time to consider. Subdivision 1 of section 791 of the Code of Civil Procedure provides for the service of a notice of trial for a particular day in the term at which the case will be moved, and unless compliance be had with the Code provisions in this respect "it shall not be moved out of its order at that term except by the special order of the court." Subdivision 2 of the same section makes the quoted provision applicable to cases for which provision is made therein. If we assume that the notice was insufficient it does not avail the appellant, for the court by special order advanced the cause as preferred and placed it upon the calendar for a particular day. This the court was authorized to do, whether the notice was sufficient or not, and as the court had power to grant the order, the cause was regularly placed upon the preferred calendar.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.