The People, ex rel. Gustave Augerstein, et al., Appellants, v. Bernard Kinney et al., Respondents

The People, ex rel. Gustave Augerstein, et al., Appellants, v. Bernard Kinney et al., Respondents. Where in an action in which the people were parties, and appeared by the attorney-general, the latter did not, at the time of serving notice of argument, give notice of a particular day in the term on which he will move it, as prescribed by the provision Of the Code of Civil Procedure (§791, subd. 1) to entitle the canse to a preference, bnt served with the notice of argument notice of motion that the cause be set down for a day named, which motion failed because the court adjourned before the day specified for making it. Held, that the action was not entitled to a preference. (Argued April 17, 1883; decided April 24, 1883.) This was a motion to set canse down for a day certain. The facts are stated in the mem. handed down, of which the following is a copy: “ This action was instituted by the attorney-general of the State of New York in the name of The People, on the relation of the relators, to determine the constitutionality of section 4 of chapter'335 of the Laws of 1873, and the amendments thereto; and to test the title of the defendants to the office of aldermen of the city of New York, and to determine? who were entitled to exercise the franchises appertaining to the common council of that city. “ The cause is upon our calendar upon an appeal of the plaintiffs, and a preference is claimed for them under subdivision 1 of section 791 of the Code, which provides for preference in ‘ an action or special proceeding, in which the people of the State are parties, and appear by the attorney-general; where the attorney-general has given notice, at the time of service of notice of trial or argument, of a particular day in the term on which he will move it.’ But the attorney-general did not give notice at the time of service of notice of argument of the particular day in the term on which he would move it; and, therefore, there is no right to the preference claimed. It is true that there was served with the notice of argument, a notice of motion for a preference, returnable April 3,1883, in which notice plaintiffs asked that the cause be set down for argument April 9, 1883, and that that motion failed, because the court adjourned before the 3d day of April. That was a notice of a motion for a preference; not a notice that the cause would be moved on a certain day, as required by the section of the Code. “As there is nothing in the papers showing that it is important that this case should have an early hearing, or that any public interests are suffering by the delay, we are disposed to hold them to the strict practice, and, therefore, to deny the motion.” [MAJORITY — Earl, J.,] Earl, J., reads mem. for denial of motion. All concur. Motion denied.