
    Joseph A. Knox, Appellant, v. Solomon Dubroff, Respondent.
    
      Preference on the trial calendar — where an order of arrest or attachment has been granted—the plaintiff may apply for the preference.
    
    Rule. 36 of the General Rules' of Practice, providing that, “ Whenever in any action an issue shall have been joined, if the defendant be imprisoned under an order of arrest in the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred,” is available not merely to the defendant who is under arrest or whose-property has been attached, but also to the plaintiff, who is entitled under the rule to make a motion that the cause be preferred. ■
    Appeal by the plaintiff, Joseph A. Knox, from an order of the Supreme Court, made at the Rew York. Trial Term and entered in the office of the clerk of the county of Rew York on the 17th day of March, 1897, denying the plaintiff’s motion for a preference.
    
      John M. Bowers and Ralph O. Miller, for the appellant.
    
      Louis Sleekier, for the respondent.
   Per Curiam:

Rule 36 of the General Rules of Practice provides : Whenever in any action an issue shall have been joined, if the defendant be imprisoned under an order of arrest in -the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred.” The plaintiff obtained an order of arrest, on which the defendant was held to bail, and in addition thereto obtained an attachment upon the defendant’s property, and upon this latter ground the action was one in which a preference was proper. This is not seriously disputed, but it is urged by the respondent that the rule granting the preference was made for the benefit of the defendant, and that, unless the latter moves, the plaintiff not- being injured, has no right to take advantage of the rule. The language employed, however, is not susceptible of any such construction. It defines under what conditions the trial of the action shall be preferred, and when the conditions are' present the benefit of the rule is as much available to the plaintiff as it is to the defendant. As the court was, therefore, in error in construing the rule the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a preference granted, with ten dollars costs to ajipellant to abide the event.

Present — Patterson, Williams, O’Brien, Ingraham and Parker, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted,.with ten dollars costs to appellant to abide event.  