Specht v. Helper

This is a motion to correct the calendar by placing the cause on the preferred calendar. The action is one to determine the validity of the probate of a will. The executor is a party defendant, both individually and in his representative capacity. The preference is claimed under section 791, subd. 5, of the Code of Civil Procedure, and opposed on the ground that such right to a preference is defeated by the fact that the executor is a party defendant individually.

In Haux v. Dry Dock Savings Institution, 150 N. Y. 581, 44 N. E. 1099, the memorandum of the court says:

“A party is only entitled…