
    Bernard Sheerin, Respondent, v. The City of New York, Appellant.
    
      Preference on the calendar of New York city cases.
    
    In the cases specified in subdivisions l and 2 of section 791 of the Code of Civil Procedure, relating to the preference of civil actions upon the calendar, the party given the preference is entitled to have the case tried at the day of the term for which it has been noticed, without regard to its position upon the calendar, while in the cases arising under subdivisions 5 to 11 inclusive of that section, the power to direct that the case be tried at the term at which the application is made is discretionary with the court. .
    Appeal by the defendant, The City of New York, fro.m 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 9th' day of June, 1902, in so far as it denies the defendant’s motion to advance the above-entitled action as a preferred cause on the Trial Term calendar over all issues not disposed of, and only grants the motion to advance over June, 1902, issues.
    
      Theodore Connolly, for the appellant.
    
      Ernest Chilton, for the respondent.
   Ingraham, J.:

This action was commenced against the city of New York to recover the amount due to the plaintiff as an employee in the department of street cleaning. The case being at issue, the defendant applied under subdivision 2 of section 791 of the Code of Civil Procedure to give the case a preference on the calendar. That section provides that in an action or special proceeding in which the city of New York is a party, where a notice has been given at the time of service of the notice of trial of a particular day in the term at which the city of New York would move the case for trial, the case should have a preference upon the calendar. It would seem to have been intended that in an action to which the city of New York is a party,, the city should have the right to have the case tried at the term for which it was noticed for trial, irrespective of its position upon the calendar. There is. a clear distinction between cases arising under subdivisions 1 and 2 of section 791 of the Code and those arising under subdivisions 5 to 11 inclusive. In the one case the attorney representing the State or municipal corporation is given the right to move the case for a particular day in the term for which it has been noticed; while in the other cases specified in section 791 of the Code the application to the court is for a preference, and-the court has power in its discretion to direct that the case be tried at a term at which the application is made. That there is a plain distinction between these two classes of cases is shown by section 793 of the Code, where it is provided that the order for a preference is not required in an action embraced within subdivisions 1 or 2 of section 791 of the Code, and this distinction was noticed in deciding Morse v. Press Pub. Co. (71 App. Div. 357). We think that in the cases specified in subdivisions 1 and 2 of section 791 of the Code, the attorney for either the State or the municipal corporation is entitled, upon giving the notice therein provided for, to have the case tried at that day of the term for which it has been noticed, without regard to the position of the case upon the calendar.

It follows that the order appealed from should be reversed, and the case remitted to the Trial Term to be disposed of as herein indicated, without costs.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed and case remitted to Trial Term as indicated in opinion, without costs.  