
    Second Department,
    February, 1966
    (February 7, 1966)
    Cord Meyer Development Company, Respondent, v. Coakley & Booth, Inc., Appellant.
   In an action to recover damages for injury to property, defendant appeals from an order of the Supreme Court, Queens County, entered August 31, 1965, which denied its motion to vacate a preference theretofore granted to plaintiff by the Calendar Clerk of Trial Term, Part I, of said court under its rule VI. Order reversed, with $10 costs and disbursements, and motion granted. The complaint alleges: (1) that defendant, in the course of performing certain building construction work pursuant to an agreement with plaintiff, negligently drove three beams into a city sewer; (2) that plaintiff, in order to protect its property, undertook the repair of the sewer and (3) that plaintiff was free of contributory negligence. The complaint seeks recovery for injury to plaintiff’s property and for expenses incurred in effecting the repair of the sewer. In our opinion, plaintiff was not entitled to the preference, because the action is one to recover damages based on negligence (Mildener v. United Ind. Bank, 10 A D 2d 976; cf. Antoni Ravioli & Baking Co. v. Freeze Foods, 1 A D 2d 953). Although the negligence charged arose out of a commercial or business transaction, that adds nothing to plaintiff’s claim for a preference (Queens County Supreme Court Rules, rule VI, subds. [b], [e]).

Ughetta, Acting P. J., 'Christ, Brennan, Hill and Hopkins, JJ., concur.  