
    Grace Lesser, an Infant, by Albert Lesser, Her Guardian ad Litem, Appellant, v. The Dry Dock, East Broadway and Battery Railroad Company, and Metropolitan Street Railway Company, Respondents.
    (City Court of New York, General Term,
    December, 1900.)
    Infant — Preference not lost by delay in placing case on calendar — Code C. P., § 791, subd. 5; § 793.
    The preference on the calendar to which an infant is entitled as matter of right where she is sole plaintiff (Code C. P., § 791, subd. 6), when properly perfected (§ 793), cannot be affected or defeated by a delay, after joining issue, in placing the case on the calendar.
    Appeal from an order denying a motion for a preference, on the ground of laches. The issue was joined on February 7, 1900. The motion was not made until October 1, 1900. The action was based upon the alleged negligence of the defendants.
    House, Grossman & Yorhaus (Louis J. Yorhaus, of counsel), for appellant.
    Henry A. Bobinson (John T. Little, of counsel), for respondents.
   Per Curiam.

The plaintiff, having complied with the only condition prescribed by the statute, is entitled to a preference as a matter of right, and delay after issue joined, in placing the case on the calendar, cannot defeat this right. Section 791, subdivision 5, of the Code of Civil Procedure provides that an "action is entitled to a preference, in which an infant is the sole plaintiff. The pleadings show that this is such a cause. The record shows, and it is not disputed, that the notice of motion for a preference was served with the notice of trial, as required by section 793 of the said Code. The claim of preference thus perfected thereupon became an absolute right. Roads v. Metropolitan St. R. Co., 50 App. Div. 160; Levy v. Hanneman, 47 id. 32.

Order appealed from reversed, with ten dollars costs and disbursements, and motion granted, without costs.

Present: McCarthy, O’Dwyee and Sohuchman, JJ.

Order reversed, with ten dollars costs, and motion granted, without costs.  