William Haux, as Executor, and Mina Haux, as Executrix, etc., William Haux and Mina Haux, Respondents, v. The Dry Dock Savings Institution et al., Appellants

William Haux, as Executor, and Mina Haux, as Executrix, etc., William Haux and Mina Haux, Respondents, v. The Dry Dock Savings Institution et al., Appellants. (Argued October 19, 1896; decided October 27, 1896.) Preference on Calendar — Code Civ. Prou § 791, Sued. o. The right to a preference upon the calendar, given by subdivision 5 of section 791 of the Code of Civil Procedure, when a person, in one of the capacities mentioned therein, is the sole plaintiff or sole defendant, does not extend to a case where the same person is joined as a party in his individual capacity as well as in the prescribed capacity. This was a motion to prefer the appeal herein, under subdivision 5 of section 791, Code of Civil Procedure. Patrick J. 0\Bierne for appellants. Ferdinand Fidma/n, Jr., for respondents. [MAJORITY] Memorandtim. A party is only entitled to a preference upon the calendar, under subdivision 5 of section 791 of the Code of Civil Procedure, where, in one of the capacities mentioned therein, he is the sole plaintiff or the sole defendant. Here other persons are joined as plaintiffs with the executor and executrix, and while those persons may be the executor and executrix, suing in their individual capacities, that fact will not serve to bring the case within the preference as accorded by the Code. What is mentioned with respect to the subject of the action does not warrant us in advancing the cause for a hearing. The motion is denied, but without costs to either party. All concur. Motion denied.