Harry Meyerson, an Infant, by Davis Meyerson, His Guardian ad Litem, Respondent, v. Samuel Levy, Appellant

Harry Meyerson, an Infant, by Davis Meyerson, His Guardian ad Litem, Respondent, v. Samuel Levy, Appellant. First Department, February 8, 1907. Practice — preference of infant—waiver of preference by default on motion therefor. According to the prbvision of section 793 of the Code of Civil Procedure a motion to place a cause upon the preferred calendar in the county of New York must be made at the commencement of the term for which notice of trial is served. If a party entitled to such preference and having served notice of trial and notice of motion for a preference upon the ground that the plaintiff is an infant make default on the return day, the right to a preference is lost. Such default is not excused because the party had failed to file anote of issue for the term for which he had noticed the trial, for in any event he should have appeared and withdrawn the motion rather than let it be dismissed. When the right to a preference has been once waived as aforesaid a subsequent notice of trial for another term is futile either to avoid the effect of the waiver or to support a new application. In the county of New York, where a large number of causes.are upon the calendar, the practice with respect to preferences must be strictly followed. Appeal by the defendant, Samuel Levy, from an order of the Supreme Court, made at the Hew York Trial Term" and .entered in the office of the clerk of the county of Hew York on the 12th day of December, 1906, granting the plaintiff’s motion for a preference. Louis Cohn, for the appellant. Myron S. Yochelson, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The sole plaintiff being an infant he would have been entitled;, under the provisions of subdivision 5 of section 791 of the Code of Civil Procedure, to a preference on the-calendar had he pursued the proper practice. On the 8th day of October, 1906, the plaintiff’s attorney served a notice of trial for the November term following, together with a notice of motion for a preference, returnable on the first Monday of that term. The defendant also noticed the cause for trial for the same ' term. The plaintiff did not appear upon the return of his motion and it was dismissed on defendant’s mo.tion for default. According to the provisions of section 793 of the Code of Civil Procedure applicable to the county of New York, a motion to place • a cause upon the preferred calendar must be made at the commencement of the term for which the" notice of trial is served. The excuse which plaintiff gives for not appearing on his motion is that he discovered that his office had failed to file a note of issue for. .the November term, and, therefore, he abandoned his motion. "The record does not disclose whether or not the defendant filed a note of issue; but he did appear in opposition to the motion for preference and took its dismissal. Presumably the cause was on the calendar and presumptively the court properly dismissed the motion for failure of plaintiff to appear."' If the plaintiff desired to save his rights he should have appeared and withdrawn his motion rather than let it be dismissed. (Bazuro v. Johnson, 71 App. Div. 255.) Concededly the cause was noticed by both parties for the November term, and the motion for preference having-been passed upon by dismissal, the plaintiff had -exhausted his,right to move at- the December term as he did. A ..failure to make a motion for preference at the commencement of the term for which notice of trial is served operates as a waiver of the statutory right of preference, and a subsequent notice of -trial for another term is futile either to avoid the effect of the waiver or to support a new application to obtain such preference as a matter, of right. (Marks v. Murphy, 27 App. Div. 160.) A .renewal of the motion at the December term, although a notice of trial wras served, was, therefore, ineffectual. In view of the large number of causes upon the calendar, in which the law gives no preference, the question as to whether a 'cause shall be preferred or not is one of importance to litigants, and the practice with respect-to preference should be strictly followed. In' our view the plaintiff had lost his right to put his cause on the preferred calendar, and the order granting his motion to that effect was improper. The order appealed from, should be reversed, with ten dollar’s costs and disbursements, and the motion denied, without costs. Patterson, P. J., Ingraham, McLaughlin and Laughlin, JJ.,. concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, without costs. Order filed.