
    George Warden and Robert Warden, as Executors, etc., of Jacob S. Warden, Deceased, Respondents, v. The Post Steamboat Company, Appellant.
    
      Preference — motion therefor may be noticed before the filing of a note of issue.
    
    A cause need not be placed upon the calendar, by the filing of a note of issue, before a notice of trial and a notice of motion for a preference can be served, although the motion cannot be granted until the cause is on the calendar.
    Appeal by the defendant, The Post Steamboat Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1899, granting the plaintiff’s motion for a preference.
    
      Charles H. Lovett, for the appellant.
    
      Edmund Luis Mooney, for the respondents.
   Ingraham, J.:

By section 193 of the Code it is provided that, in the county of" New York, a party desiring a preference of any cause shall serve-upon the opposite party, with his notice of trial, a notice that an application will be made to the court, at the opening thereof, or to-such justice or other term of court, or at such other time as shall be prescribed by the general or special rule's of practice, for leave-to move the same as a preferred cause, and if the right to a preference depends upon facts which do not appear in the pleadings or other papers upon which the case is to be tried, the notice must be-accompanied by an affidavit showing such facts * * * and iff it shall appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the application is-made, the court or justice may direct that it shall be so heard.”' This action was noticed for trial for the February, 1899, term, and with the notice of trial for such term was served a notice that, upon an affidavit annexed, the plaintiff would move, on the first Monday of February, 1899, for an order placing the case upon the preferred calender for trial upon the 8th day of February, 1899, upon the-ground that the action was entitled to a preference, and for such. ■other and further relief in the premises as should be just. The affidavit annexed to this notice alleged that an attachment had been issued in this action, and that thereunder the sheriff of the city and ■county of New York had attached a steamboat, the property of the ■defendant, taking the same into his actual custody; that such warrant of attachment is still in force and effect, and that the said property of the defendant is still held under such attachment. It ■appeared from the complaint which was used on the motion that the plaintiffs were suing as executors, and as such executors were sole parties plaintiff. By subdivision 5 of section 791 of the Code, it is provided that an action or special proceeding in which an executor •or administrator is the sole plaintiff or sole defendant is entitled to a preference; and by rule 36 of the General Rules of Practice, it is provided that, whenever in .any action an issue shall have been joined, and the property of the defendant be held under an attachment, the trial of the action shall be preferred. There was proof presented to the court below that the property of the defendant was held under an attachment issued in this action, and from the pleadings it appeared that- the sole parties plaintiff were executors. 'Therefore, both under the Code and the General Rules of Practice, the plaintiffs were entitled to a preference, and upon both these grounds the order below was granted.

The objection is also taken by the defendant that it did not appear that, when the notice of trial was served, the case was upon the calendar ; but by the section of the Code before cited, this notice of motion must be served with the notice of trial. By the Code, a note of issue is not required to be filed until twelve days before the ■commencement of the term for which the cause has been noticed. It seems, therefore, that it was not contemplated by the Code that the note of issue should have been filed when this notice of trial was •served, or a notice that the plaintiffs intended-to apply for a preference was given. Of course, such a motion could not be granted until the cause was ujdou the calendar, but the motion was made to the ■court upon whose calendar the action must appear, and the court itself was bound to take notice of the actions upon its calendar. The motion had reference to the cause upon the calendar, and in the absence of any proof to the contrary it must be presumed that the ■court acted upon such knowledge.

The plaintiffs were clearly entitled to have the cause preferred as a matter of right, and we think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  