
    William J. Hardy et al., Plaintiffs, v. The Knickerbocker Trust Co., as Committee of the Property of Mary A. Lucas, an Incompetent Person, Defendant.
    (Supreme Court, New York Special Term,
    May, 1898.)
    Preference on' the calendar — One who claims a statutory preference will be held to strict practice.
    Where the plaintiff seeks a preference on the calendar upon the statutory ground that the sole defendant is the committee of a lunatic, strict practice must be followed and a notice that an application for the preference will be made at the opening of court must be served at the same time with the'notice of trial.
    A statement, contained in a notice of trial, “'that ñ preferene is claimed herein, under section 791, subdivision 5, of the Code of Civil Procedure, on the ground that the Knickerbocker Trust Cto., as the committee of the property of iMary A. Lucas, an incompetent person, is the sole defendant herein,” is an Insufficient compliance with section 793 of the Code of Civil Procedure.
    Motion for an order pf preference.
    Hardy & Kennedy, for motion.
    Davies, Stone & Auerbach, opposed.
   Gildersleeve, J.

This is a motion for a preference7- on the statutory ground that the sole defendant is the committee of a.lunatic. See Oode, § 791, subd. 5. It is not claimed by the moving party here that there has been an exact compliance with the ,re- - quirements of section 793 of the Oode, which provides that a party desiring a preference of any cause shall serve upon the opposite party,- with his notice of trial, a .notice that an application will be made to the court, at the opening thereof, for leave to move the same as a preferred cause. The notice of trial in the case at bar was served on April 16th,'while the notice of motion for the1 prefer-' ence was served on April 29th. In the notice of trial, however, it is stated “ that a preference is claimed herein, under section 791, subdivision 5, .of the Oode of Oivil Procedure, on the ground that the Knickerbocker Trust Co., as the committee of the property idf Mary A. Lucas, an incompetent person, is the sole .defendant herein” It is urged by the plaintiff that this .statement in the notice of trial is a sufficient compliance with the provisions of the statute.- I think this position untenable. In the case at bar, the motion is not addressed to the discretion of the1 court, but made solely as a matter of right under the terms of the statute; and, in the. case -of Marks v. Murphy, 27 App. Div. 160; 50 3ST. Y. Snpp. 622, the Appellate Division have held that where a motion for a preference is made solely as a matter of .right, under Hie- terms of the Statute, parties axe held to strict practice. The motion must he denied, for the reason that the plaintiff has n-ot observed the strict practice required under the circumstances.

Motion denied.  