Marks v. Murphy
Appellate Division of the Supreme Court of the State of New York
Appeal by .the defendant, Joseph H. Murphy, from an order .of the Supreme Court, made at the Mew York Trial Term and entered-in the office of "the clerk, of. the county of Mew York on the 10th day of Febfuary, 1898, granting the plaintiff’s motion to place the abovq-entitled action on the preferred cause calendaf for trial.
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Appeal by .the defendant, Joseph H. Murphy, from an order .of the Supreme Court, made at the Mew York Trial Term and entered-in the office of "the clerk, of. the county of Mew York on the 10th day of Febfuary, 1898, granting the plaintiff’s motion to place the abovq-entitled action on the preferred cause calendaf for trial. The plaintiff served his notice of trial for the first Monday of January, and with it, notice of a motion for a preference, returnable ón the following day. He obtained his order for a preference upon the first Monday of January, in the absence of the defendant, but as he…
1Opinion of the Court
Barrett, J.:
Section 793 of the Code of Civil Procedure provides that, in this ' county, a party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, for leave to move the same as a preferred cause.
It is the settled practice in this district that such an application must be made at the commencement of the term for which the notice of trial is served. If not so made, the right to a statutory preference is waived.
In the present case the plaintiff should have moved for a…
2Cited by16 opinions
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- American Exchange National Bank v. Yule Machine Co.Appellate Division of the Supreme Court of the State of New York · 1901
- Coffin v. McLaughlinNew York Supreme Court · 1898
- McIntire v. National Nassau BankAppellate Division of the Supreme Court of the State of New York · 1912
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