
    GIVEEN MFG. CO. Appellant, v. McNULTY, Respondent.
    (Supreme Court, Appellate Division, First Department.
    November 25, 1904.)
    Action by the Giveen Manufacturing Company against Charles J. McNulty, as trustee, etc. From an order granting a preference of the cause on the trial calendar, plaintiff appeals. Reversed. A. H. Parkhurst, for appellant. Charles L. Greenhall, for respondent.
   PATTERSON, J.

This cause was given a preference under the provisions of section 793 of the Code of Civil Procedure, as amended in 1904 (Laws 1904, p. 312, c. 173), and by the order it is directed that the cause be preferred and set down on the day calendar of Trial Term, part 10, of this court, for the 24th of October, 1904. We have held in the case of Riglander v. Star Company (decided herewith) 90 N. Y. Supp. 772, that the new provision of the act of 1904, which requires a cause to be set down for a particular day and then tried, is unconstitutional. Following that decision, the order granting the preference in this case, and which is now appealed from, must be reversed with $10 costs and disbursements, but with liberty to the moving party to apply for such preference as the court may give, irrespective of the provisions of section 793 of the Code of Civil Procedure, declared to be unconstitutional. All concur.  