Opinion
June, 1901.
William R. Adams, for appellant.
Walter F. Wood, for respondent.
The respondent evidently mistook his right under section 791 of the Code of Civil Procedure. He was doubtless entitled to a preference on either of two grounds, but could not urge a right to a statutory preference for the reason that he could try his cause within an hour, or vice versa. He claimed the right to advance a one-hour cause under subdivision 8 of the said section. He should have noticed and moved at Trial Term for advancement ( 92 N.Y. 647, 13 Civ. Pro. 166), or else made his motion to have the cause placed upon the calendar of Part IV because on contract.
Rule XIV (of the City Court), cannot operate, nor was it promulgated, to overstep the practice ordained by the Code; but to provide a needful, additional relief, in certain cases not specified in the statute. The amendatory order of May thirteenth became unavailing, and a second notice of trial did not cure plaintiff's infirmity of practice. 12 N.Y.S. 725.
For these reasons the order of May 13th and of May 2, 1901, should be reversed, with one bill of costs and disbursements of appeal to the appellant.
CONLAN and O'DWYER, JJ., concur.
Orders reversed, with one bill of costs of appeal to appellant.