Opinion
November Term, 1900.
Vincent P. Donihee, for the appellant.
Leo J. Kersburg, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, O'BRIEN and McLAUGHLIN, JJ.
It appears from the papers used upon the motion that on the 21st of April, 1900, a notice of trial for the first Monday of May was served on the defendant's attorney, and two or three hours later on the same day plaintiff's attorney served a notice that a motion would be made also on the first Monday of May for a preference on the calendar. The preference was claimed under subdivision 5 of section 791 of the Code of Civil Procedure. The motion for a preference was denied upon the ground that the notice claiming the preference was not served with the notice of trial.
It is not necessary that the notice of an application for a preference should be attached to or served at the same time as the notice of trial. It is sufficient if it be served at any time within which the cause could be noticed for trial. This is what this court held in Gilbert v. Finch ( 46 App. Div. 75), and on that authority the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.