
    James J. Davis, as Trustee, etc., Plaintiff, v. Walter T. Westervelt, et al., Defendants.
    (Supreme Court, New York Trial Term,
    May, 1902.)
    Calendar — Preference of an action by a trustee in bankruptcy, in the First Department — Code C. P., § 791, subd. 5.
    The statutory preference given an action brought by a trustee in bankruptcy as sole plaintiff will not, in the First Judicial Department, be permitted to advance such an action over issues noticed for trial at prior trial terms, and to secure such a result some additional reason must appear.
    Such an action is, otherwise, only entitled to a preference over other issues of the same term as that for which it is noticed.
    Motion for a preference.
    Boothby & Baldwin, for motion.
    Mo appearance in opposition.
   Gildersleeve, J.

This is an application for a preference under section 791, subdivision 5 of the Code. There is no opposition to the motion. The plaintiff, however, relies wholly upon the ground that the sole plaintiff is a trustee in bankruptcy, and gives no other reason for asking the preference than that such a case is preferable under section 791, subdivision 5 of the Code. This is not enough. Some other fact than that the action is one specified in section 791 of the Code must be shown to justify the court in preferring the action over other issues than those of the present term. See Morse v. Press Pub. Co., 71 App. Div. 351. Motion granted giving the cause a preference over the issues noticed for the present May term in its regular order.

Motion denied.  