
    Charles Koerner, by Moses Koerner, His Guardian Ad Litem, Respondent, v. Hannah E. Kelley, Appellant.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Calendar — Order on calendar — Preference — Proceedings to obtain preference — Notice of application for preference.
    Although it appears upon the face of the complaint that plaintiff is entitled to a preference under subdivision 5 of section 791 of the Code of Civil Procedure, he will be deemed to have waived such right, in an action in the City Court of the city of New York, by his failure to serve notice of application for such preference with his notice of trial.
    This is an appeal by the defendant from an order of the City Court of the city of Hew York, granting plaintiff’s motion for a preference.
    
      Carl Schurz Petrasch, for appellant.
    Henry Kuntz, for respondent.
   Per Curiam.

Issue was joined in this action on May 25,. 1906,. and plaintiff, on January 29, 1907, noticed the cause for trial for the February term, 1907. Ho notice of application for a preference was served, although it appeared upon the face of the complaint that plaintiff was entitled to a » preference under subdivision 5 of section 791 of the Code of Givil Procedure. 'On May 6, 1907, plaintiff served a notice of motion, returnable on the thirteenth, for a preference; and on the seventeenth this motion was granted and an order entered setting the cause down for trial on the twenty-third. The plaintiff, by his failure to serve notice of application for a preference with his notice of trial, waived any claim to such preferment. Code Civ. Pro., § 793; Rule III, Rules of the City Court of the city of Hew York.

Present: Gildersleeve, Guv and Bruce, JJ.

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