
    EASTERN NAT. BANK v. BRUNSWICK CHEMICAL WORKS.
    N. Y. Supreme Court, First District, Special Term ;
    
    
      February, 1887.
    1. Preference on trial calendar hoto obtained.] In an action against a corporation upon its' promissory note, the plaintiff is entitled i under subdivision 8 of section 791 of the Code of Civil Procedure, i to a preference of the cause for trial without serving an order therefor with or before the notice of trial or argument, as the right to a preference appears upon the pleadings.
    2. The same; direction to cleric.] There being no rule by which the clerk may determine for himself whether the cause is entitled to J preference, he may be directed upon plaintiff’s motion to put the cause upon the preferred calendar.
    
    
      Re-argument of motion to placo cause on preferred calendar.
    The facts fully appear in the opinion. .
    
      O. Bainbridge Smith,, for the plaintiff, and the motion.
    
      Bergen & Dijhman, for the defendant, opposed.
    
      
      In the city court of N. Y.,.rule 13, which touches on this subject was recently [Fob. 3, 1887] amended to read as follows:
      “In actions on contract, where there is proof that a note of issue has been filed and the cause noticed for trial and that the trial will not occupy more than one hour, and in all cases entitled to preference by section 791 of the Code, the plaintiff may, by a motion at special term, on a notice of four days, have the issue placed upon the special calendar for trial, serving with such notice any affidavits or papers he may wish to use on the motion which have not already been served, and such cause may be so advanced for trial in the discretion of the judge. If the motion be granted, the cause will be entered upon the special calendar to be made by the clerk on receiving a copy of the order, which shall specify the number of the cause on the general calendar. The order must be filed with the clerk at least two days before the day on which the cause shall be so entered.
      “ The special calendar shall be called on each Friday in each jury term in each trial part, and if the trial of the cause shall occupy more than one hour, the trial may be suspended at the discretion of the court, and the cause shall go to the foot of the general calendar as at that time.”
    
   Lawrence. J.

The plaintiff moved in this case for an order placing the cause on the day calendar, on the ground that it is entitled to a preference, pursuant to subdivision 8 of section 791, of the Code of Civil Procedure, it appearing by the pleadings that it is an action against a corporation upon a promissory note for the absolute payment of money.

Having heard the motion on January 10 last, I filed a memorandum, reported in the N. Y. Daily Register of January 11, to the following effect: “ If an order if- requisite in this case, it seems to me that it should have been obtained and served with the notice of trial (see section 793, of the Code of Civil Procedure; Robertson v. Schellhaas, 62 How. Pr. 489 ; City Natl. Bank of Dallas v. Natl. Park Bank, 62 How. Pr. 495).” The plaintiff has now moved for a re-argument, and both parties have been heard thereon.

As the point involved is quite an important one as to the practice to be pursued, I have re-examined the case with considerable care, and have come to the conclusion that my first impression was erroneous. The cases which are entitled to preference are specified in article 2 of title 6, chapter 8, of the Code of Civil Procedure. In the eighth subdivision of section 791, it is provided as follows : “ An action against a corporation, founded upon a note or other evidence of debt, for the absolute payment of money.” By section 793 it is provided that “ where the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must procure an order therefor fz-om the court, or a judge thereof, upon notice to the adverse party. A copy of the order must be served, with or before the notice of trial or argument. Such an order is not appealable ; but it may be vacated by the judge or judges holding the term at which the preferred cause is noticed for trial or hearing. But a preliminary order is not requisite in a case embraced within subdivision first or second of the last section but one ; and the order in a case embraced within subdivision 6 thereof, may be made ex £ arte, and is conclusive.”

In my previous memorandum, I referred to the cases of Robertson v. Schellhaas (62 How. Pr. 489), and City Natl. Bank of Dallas v. Natl. Park Bank (Ib. 495), but an examination of those cases will show that they are not controlling upon this motion, for the reason that the right to a preference in those cases was determined to be upon facts which did not appear upon the pleadings, and that, therefore, under the plain language of section 793, the order granting such preference must have been served with or before the notice of trial. In this case, under subdivision 8 of section 791, as it is clear that the action is founded upon a note for the absolute payment of money, the right to a preference does not depend upon an order served with or before notice of trial. It is an absolute right vested in the plaintiff, and the provisions of section 793, requiring an order to be served with or before the notice of trial or argument, do not apply.

The order asked for in this case is merely a direction to 'the clerk to put the cause upon the preferred calendar, and as there seems to bo no rule by which the clerk can determine for himself whether the cause is entitled to such a preference, I think that the order should he granted, and an order to that effect will therefore he made.  