
    (38 Misc. Rep. 44.)
    DOOLEY v. PAGET.
    (Supreme Court, Trial Term, New York County.
    May, 1902.)
    Preference on Calendar—Affidavit.
    On a motion for a preference under Code Civ. Proc. §. 791, on the ground that the sole plaintiff sues as administratrix, the rule that some other fact than that the action is one specified in said section must be shown to justify the preference is satisfied where the affidavit alleges that the plaintiff was absolutely dependent upon her intestate for her support.
    Action by Mary Dooley, as administratrix, against Claude Paget.
    Motion for preference granted.
    Lamb, Osborne & Petty, for the motion.
    F. V. Johnson, opposed.
   GILDERSLEEVE, J.

The motion is under section 791 of the Code, on the ground that the sole plaintiff sues as administratrix. The defendant raises the objection that the notice of motion does not state that it is made upon the pleadings, as well as upon the notice of trial and upon the affidavits; and the defendant’s counsel cites Roberts v. Jenkins, 52 App. Div. 491, 65 N. Y. Supp. 385, and Marando v. T. A. Gillespie Co., 54 App. Div. 488, 66 N. Y. Supp. 1027, in support of his contention. These authorities hold that the right to a preference upon the calendar will not be inferred from the simple fact that the title of the action indicates that the plaintiff is an administratrix, where the pleadings are not before the court. This motion does not come within these authorities, for the simple reason that the pleadings are before the court, besides which, the affidavit states the statutory fact. The notice of motion is for the commencement of the term for which the notice .of trial was served, and satisfies the requirements of section 793 of the Code, as construed in the case of Marks v. Murphy, 27 App. Div. 160, 50 N. Y. Supp. 622. There is no merit whatever in defendant’s contention of irregularity. The plaintiff has also satisfied the requirement of the rule laid down in the case of Morse v. Publishing Co. (Sup.) 75 N. Y. Supp. 976, that, in motions under section 791 of the Code, some other fact than that the action is one specified in said section must be shown, to justify the court in preferring the action over issues noticed for trial for prior terms. It appears by affidavit that plaintiff was absolutely dependent upon her intestate for support, and that by his death, caused by the negligence of defendant, she is left without any means, except such as she is able to obtain from the charity of friends. The motion to advance this case, and place it on the Friday call calendar of this court for the 16th day of May, 1902, is granted.

Motion granted.  