
    William H. McIntire, Respondent, v. The National Nassau Bank, Appellant.
    First Department,
    May 31, 1912.
    Practice — trial — preference ■— old age and infirmity of plaintiff—fail-. ure to assert right to preference.
    The Code of Civil Procedure does not require the court to grant a preference in the trial of an action upon the sole ground that the plaintiff is advanced in years and is in ill-health.
    A preference upon that ground should not be granted where the deposition of the plaintiff' has already been taken, so that the preference is not sought in order to enable him to attend trial.
    Plaintiff loses his right to a preference by a failure to assert it when the cause is first noticed for trial and placed upon the calendar.
    Appeal by the defendant, The National Nassau Bank, 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 12th day of April, 1912, granting a preference in the above-entitled action.
    
      Marshal Stearns, for the appellant.
    
      George Gordon Battle, for the respondent.
   McLaughlin, J.:

Action to recover $5,500 which plaintiff deposited with ■ defendant. As a defense defendant alleges that it has already paid such sum upon a check drawn by plaintiff to the order of one Palmer. The genuineness of the signature to the check is disputed, and as a separate defense it is alleged that the plaintiff is estopped from asserting that fact by reason of his failure to give to defendant written notice within ten days after the check was returned, which, it is claimed, he had agreed to do.

After issue had been joined, plaintiff on January 16, 1912, served a notice of trial for the February term, and filed a note of issue. On February tenth he served a new notice of trial for the March term, and also filed a new note of issue. But with neither notice did he claim a preference.

On March 22, 1912, plaintiff moved for a preference under subdivisions 7 and 10 of section 791 of the Code of Civil Procedure. The motion was denied, but upon a reargument the same was granted, and the defendant appeals.

The subdivisions of the section of the Code referred to do not entitle the plaintiff to a preference, but it is claimed that the order was properly granted because the moving papers show that the plaintiff is advanced in years and is in ill-health; in other words, that by reason of such facts he desires a speedy trial. There is no provision of the Code of Civil Procedure which requires the court to grant a preference upon that ground. (Haskin v. Murray, No. 1, 29 App. Div. 370; Gegan v. Union Trust Co., 120 id. 382.)

"Plaintiff undoubtedly wants a speedy trial — most plaintiffs do — to the end that he may obtain satisfaction of his claim. A preference is not sought for the purpose of enabling him to attend the trial. His deposition has already been taken, and in an affidavit which was presented by him, made by his own physician, the statement is made and is not controverted, that William H. Mclntire is a very old man and suffers from rheumatism and other ailments peculiar to people of his extreme age; that in the opinion of deponent Captain Mclntire will not be able to attend court when this action is called for trial, and that for him to do so would be most dangerous.”

Moreover, the plaintiff has lost his right to a preference by his failure to assert it when the issues were, first noticed for trial and placed upon the calendar. (Code Civ. Proc. § 793; Marks v. Murphy, 27 App. Div. 160; Williamson v. Standard Structural Co., 48 id. 186; American Exchange Bank v. Yule Machine Co., 58 id. 320; Meyerson v. Levy, 117 id. 475; Gegan v. Union Trust Co., supra.) The court could prefer the case if circumstances justified it, but such facts are not presented in this case.

Upon this ground, therefore, as well as upon the ground that no facts or circumstances were shown which entitled the plaintiff to a preference, the order appealed from is reversed, with ten dollars costs and disbursements and the inotion denied, with, ten dollars costs.

Ingraham, , P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  