Alfred Williamson and George J. Greenfield, as Executors, etc., of Stephen H. Williamson, Deceased, Respondents, v. The Standard Structural Company, Appellant

Alfred Williamson and George J. Greenfield, as Executors, etc., of Stephen H. Williamson, Deceased, Respondents, v. The Standard Structural Company, Appellant. Preference on the calendar — it cannot be secured under a notice of a motion "to place this case upon the short cause calendar.” The failure of a party to an action pending in the county of New York,' which is entitled to a-preference under the statute, to serve with his notice of trial a notice that an application for the preference will be made at the opening of the term, as required by section 793 of the Code of Civil Procedure, operates as a waiver of his statutory right to the preference. 1 statement at the foot of the notice of trial that a motion will be made “to place this case upon the short cause calendar,” is not equivalent to a notice-of an intention to apply for a statutory preference, and will not support an order made after the opening of the term placing the cause upon ,the preferred calendar, upon the ground that it was entitled to a preference under the statute, and not because it was a short cause. Appeal by the defendant, The S’tandard.Structural Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 29th day of November, 1899, placing the cause upon the preferred calendar for trial. William, R. Adams, for the appellant. Ernest G. Stevens, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The preference here given was because the executors are the sole plaintiffs. Without determining the question whether the action — being for damages to plaintiffs’ business and premises of which they were in possession as lessees — was entitled to a preference, we think the motion should have been denied upon the ground of waiver. Section 793 of the Code of Civil Procedure provides that in the county of New York “the party desiring a preference of any cause shall serve upon the opposite party with his notice of trial, a notice that an application will he made to the court at the opening thereof,” and it has been held in many cases that the failure to make the motion at that time operates as a waiver of the statutory right to a preference. (Marks v. Murphy, 27 App. Div. 160; Haskin v. Murray, 29 id. 370.) Here the notice of trial was served for the November term, and at the bottom of such notice was a statement that a motion would be made “ to place this case upon the short cause calendar.” On November twenty-eighth such a motion was made on an affidavit which stated that the trial of the action would not occupy more than two hours. The judge did not, however, grant the motion upon the ground that the action was a short cause, but for the reason, as stated, that it was (under the statute) entitled to a preference. To obtain such preference the plaintiffs should have served with the- notice of trial a notice of motion, and the failure to do so was a waiver of the statutory privilege. Notice of an intention to move to place on the preferred calendar on the ground it is a short cause is not the equivalent of a notice of motion for a statutory preference which should be served with the notice of trial. The order accordingly should be reversed, with ten dollars costs and disbursements, and the motion denied, without costs. Present — Van" Brunt, P. J., Barrett, Patterson, O’Brien and McLaughlin, JJ". Order reversed, -with ten dollars costs and disbursements, and motion denied, without costs.