
    Elizabeth Rhoads, as Administratrix, etc., of George B. Rhoads, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Preference on the calendan' — what laches will not defeat it.
    
    The laches which will defeat a motion for a preference on the calendar, made under subdivision 5 of section 791 of the Code of Civil Procedure, is only such laches as has injured the opposing party.
    The failure of the moving party to put the case upon the calendar for three terms after it has been at issue, will not defeat the motion where there is no reason to believe that the case could have been tried at any of such terms.
    Appeal by the plaintiff, Elizabeth Rhoads, as administratrix, etc., of George B. Rhoads, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1900, denying the plaintiff’s motion for leave to move the above-entitled action as a preferred cause, and for an order placing the same upon the special calendar of the court for the trial of preferred causes.
    
      Thomas Allison, for the appellant.
    
      Charles F. Brown, for the respondent.
   Per Curiam :

The plaintiff was entitled to a preference under subdivision 5 of section 791 of the Code of Civil Procedure. The only condition prescribed by the statute of obtaining such preference is that the party desiring it shall serve with his notice of trial a notice that an application will be made to the court for the preference, and that application can only be made when the case shall have been noticed for trial, and at the term at which it is so noticed. (Code Civ. Proc. § 793.) No other condition is required.

The laches which will defeat the motion is only that by which the opposing party has been injured. No such laches appears here.

It is quite true that the issues in this action having been joined in September, it might have been put on the November, December and January term calendars. But there is no reason to believe that it could have been tried at any of these terms, and it is impossible to see what injury was done to the defendant by delaying putting the case on the calendar until there was a possibility of trying it. The case is within the rules laid down in Bailey v. Miles (46 App. Div. 607); Levy v. Hanneman (47 id. 32).

The order refusing to grant the preference must be reversed, with ten dollars costs and disbursements, and the case sent back to the court below, with directions to grant the preference.

Present—Yah Brunt, P. J., Barrett, Rumsey, Patterson and McLaughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and case sent back to court below, with directions to grant preference.  