
    George Eckhard, Respondent, v. Alfred Walker Jones and The Monterey and Fresno Railroad Company, Appellants.
    
      Preference on calendan'in the first district —hoio waived.
    
    ■ In the first district a party entitled to a-preference waives his right thereto where he neglects to serve With his notice of- trial a notice that he will make applica- ■ tion- to the court for a preference on the opening1 day of the term. - (Code Civ, Proc. § 793.)
    Appeal by the defendants,-Alfred Walker 'Jones and another,, from an order of- the Supreme Court, made at the New York Trial Term and entered in the Cilice -of the clerk of the county of New' York on the 6tli day of October,, 1899, placing the causé: upon the . preferred calendar, and also from an order entered in- said cleric’s office on the 12th- day of October,, 1899, denying their motion for á reargiiment. :
    
      Henry Daily, Jr., for the appellants.
    
      Philip Carpenter, for the respondent.
   O’Brien, J.:

The question presented on this appeal- relates to the proper calendar practice in the county of New York in regard to preferences.

This action is for money, claimed to be due the plaintiff for services; and:, .at the. commencement, the plaintiff obtained an attachment. When at issue, the plaintiff served a notice Of trial for the first Monday or 2d day of October, 1899,. and put the action on the general calendar. After sérvicé of such notice of trial, and on the 3d day of October, 1899, he seryed an affidavit and notice of motion for the fifth day of October, wherein he stated that he would apply for an order placing his action upon the preferred calendar.

Having first denied, the learned judge subsequently granted the motion; and, thereafter, upon the ground that a memorandum in opposition to the motion,' through inadvertence, had not been handed to the judge, a motion for reargument was made, which was denied. It is from the two orders entered in accordance with the disposition made of the motions, one placing the action on the preferred calendar and the other denying a reargument, that this appeal is taken.

The fact appearing that an attachment had been issued and property of the defendant held thereunder, the action was entitled to a preference under rule 36 of the General Rules of Practice, if a motion therefor was made in time. As said in Marks v. Murphy (27 App. Div. 160): “ Section 793 of the Code of Civil Procedure provides that, in this county, a party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court, at the opening thereof, for leave to move the'same as a preferred cause. It is the settled practice in this district that such an application must be made at the commencement of the term for which the notice of trial is served. If not so made, the right to a statutory preference is waived. ' In the present case the plaintiff should have moved for a preference upon the first Monday of January. ' His notice of trial was for that, day, and lie could apply for such a preference upon no other day.

“ An application for a preference upon the following day was not authorized by the statute. It follows that, by his failure to move upon the first Monday of January, he waived his statutory right. His subsequent notice of trial for the February term was futile to avoid the effect of this waiver or to support another application for a statutory preference.”

The rule thus enunciated is conclusive, upon the question here presented as to the proper calendar practice in the county of Mew York. In accordance with it the plaintiff should have served, with his notice of trial for the first Monday of October, a notice that he would make an application to the court at that time for a preference. As he did not do this, the order below was erroneous and should be reversed, with ten dollars costs_ and disbursements, and the motion for preference denied, with ten dollars costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

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