
    Charles V. R. Marsh, Respondent, v. The Standard Structural Co., Appellant.
    (City Court of New York, General Term,
    June, 1901.)
    City Court of New York — Preference under Rule XIV.
    Under Rule XIV of the City Court of the city of New York the plaintiff cannot procure an action against a corporation, founded upon a note, and whose trial is not likely to occupy more than one hour, to be placed on the short cause calendan in Part IV where his only claim for a preference has been based on Code C. P., § 791, subd. 8, that the action is against a corporation and founded on a note.
    Appeals by the defendant, appellant, from an order made May 2, 1901, advancing this case for trial on the short cause calendar in Part IV, and also from an order made May 13, 1901, amending the same and sending the case to Part I for trial. The plaintiff first noticed the case for trial for April tenth, and his motion for an order placing it on the short cause calendar was made returnable April ninth. He defaulted but the default was opened and the order of May 2, 1901, was made. The defendant procured this to be modified by the order' of May 13, 1901. Rule XIV of the City Court provides for placing on a special calendar in Part IV actions on contract likely to be tried in one hour. The action was upon a promissory note made by the defendant, a corporation, and subsequently indorsed to the plaintiff.
    William R. Adams, for appellant.
    Walter F. Wood, for respondent.
   Hascall, J.

The respondent evidently mistook his right under section 791 of the Code of Civil Procedure. He was doubtless' entitled to a preference on either of two grounds, but could not urge a right to a statutory preference for the reason that he could try his cause within an hour, or vice versa. He claimed theyight to advance a one-hour cause under subdivision 8 of the said section. He should have noticed and moved at Trial Term for advancement (92 N. Y. 647, 13 Civ. Pro. 166), or else made Ms motion to have the cause placed upon the calendar of Part IV because on contract.

' Rule XIV (of the City Court), cannot operate, nor was it promulgated, to overstep the practice ordained by the Code; but to provide a needful, additional relief, in certain cases not specified in the statute. The amendatory order of May thirteenth became unavailing, and a second notice of trial did not cure plaintiff’s infirmity of practice. 12 N. Y. Supp. 725.

Eor these reasons the order of May 13th and of May 2, 1901, should be reversed, with one bill of costs and disbursements of appeal to the appellant.

Conlan and O’Dwyer, JJ., concur.

Orders reversed, with one bill .of costs of appeal to appellant.  