
    Mary E. Ahern, Individually, and as Executrix, etc., Plaintiff, v. Michael J. Ahern et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1899.)
    Practice, calendar — Plaintiff sole executrix entitled to no preference where she sues also as an individual.
    Where a plaintiff sues, not only as sole executrix, but also as an individual, she is not entitled to a preference on the calendar, under subdivision 5 of section 791 of the Code of Civil Procedure.
    
      Motion for preference.
    A. 3". Talley, for motion.
    No one appearing in opposition.
   (Hldebslebve, 3".

This is a motion to place a cause on the preferred calendar. There is apparently no opposition to the motion, but that fact is not a sufficient reason for incumbering the preferred calendar with an additional case, unless some right or reason is shown for the preference. There is no affidavit to indicate the grounds upon which the claim to a preference is based, nor is there anything on the face of the two papers handed up, to wit, the notice of motion and the proposed order, to show any right to the order of preference. It is true that it appears that the sole plaintiff sues as executor, which would constitute a claim for a preference, under subdivision 5 of section 791 of the Code, were it not for the fact that she also sues individually. The right to a preference upon the calendar, given by subdivision 5 of section 791 of the Code when a person in one of the capacities mentioned therein is the sole plaintiff or sole defendant, does not extend to a case where the same person is- joined as a party in his individual capacity as well as in the prescribed capacity. See Haux v. Dry Dock Savings Institution, 150 N. Y. 581. As I have already intimated, there is nothing to show that the motion is made under rule 10 of the Special Term rules of this department, and I conclude that it is made under the statute above referred to, on the ground that the sole plaintiff is an executor. For the reasons already stated this case does not come within the requirements of that statute. The motion must he denied, with leave to renew on further papers. No costs.

Motion denied, with leave to renew, no costs.  