
    Mary Rudolph, as Administratrix, etc., of Ernest Rudolph, Deceased, Appellant, v. The Third Avenue Railroad Company, Respondent.
    
      Notice of an application for a preference — when served two or three■ hours after a-notice of trial it is sufficient.
    
    A notice of an intention to apply for a preference under subdivision 5 of section • 791 of the Code of Civil Procedure, served two or three hours later than the-notice of trial, but on the same day and within the time during which the • cause could be noticed for trial, is sufficient.
    Appeal by the plaintiff, Mary Rudolph, as administratrix, etc., of". Ernest Rudolph, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in tire office of the-clerk of the county of New York on the 11th day of May, 1900,.. denying the plaintiff’s motion for a preference on the calendar.
    
      Vincent P. Donihee, for the appellant.
    
      Leo J. Kersburg, for the respondent.
   Per Curiam:

It appears from the papers used upon the motion that on the 21st”. of April, 1900, a nótice of trial for. the first Monday of May was served on the defendant’s attorney, and two or three hours later on the same day plaintiff’s attorney served a notice that a motion would be made also on the first Monday of May for a preference on the-calendar. The preference was claimed under subdivision 5 of sec-tion 791 of the Code of Civil Procedure. The motion for a preference was denied upon the ground that the notice claiming the preference was not served with the notice of trial.

It is not necessary that the notice of an application for a preference should be attached to or served at the same time as the notice of trial. It is sufficient if it be served at any time within which the cause could be noticed for trial. This is what this court held in Gilbert v. Finch (46 App. Div. 75), and on that authority the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present — Van Brunt, P. J., Rumsey, Patterson, O’Brien and McLaughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  