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ARTICLE XI.

PREFERENCES ON THE CALENDAR. 1. Classifications.

II. IN COUNTIES OF NEW YORK, 2. Waiver.

KINGS, QUEENS, ERIE, AND IX 3. Inherent power of court.

THE SEVENTH JUDICIAL DISTRICT.

I. IN COUNTIES OTHER THAN NEW FORMS.

YORK, KingS, QUEENS, ERIE, (1322) notice of motion for prefer-
AND IN THE SEVENTH JUDICIAL

ence under statute over all DISTRICT.

other issues.

(1323) Affidavit upon motion for FORMS.

preference. (1319) Affidavit to obtain pres (1324) Order granting preference ence on the calendar; on

on trial term in first dis. facts not appearing in the

trict. pleadings.

(1325) Affidavit upon motion to (1320) Notice of motion to put

prefer as a short cause. cause on preferred calen

dar. (1321) Order thereon.

1. Classifications.] — Preferences upon trial and appeal calendars are regulated by statute,32 by general court rules, 33 and by local rules prescribed by the different Appellate Divisions or trial justices.

Except in the counties of New York, Kings, Queens, Erie, and of the seventh judicial district, if the right to a preference appears upon the pleadings, no order is necessary, but the note of issue must make the claim and the clerk will award the preference. In the excepted counties, a court order is required. 35

The local regulations are, of course, adapted to local conditions, and are so varied that no consideration of them may properly be attempted.

Where a court order is necessary, the statute makes two classifications: (1) In the excepted counties, as above named, a motion is always essential, notice must be served with the notice of trial, and the granting of the preference is discretionary;36 (2) in other counties, the motion must be made before the cause is noticed for trial, and the order obtained before and served with the notice of trial.37

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2. Waiver.] — The right to the statutory preference may be lost in various ways: a husband failing to pay alimony is not entitled ; 38 a party failing to move for preference at the term noticed by his adversary cannot thereafter move at a later term ;39 if the motion is not made at the term for which the cause is noticed, 40 or, on the day noticed,41 the statutory right is lost.

Laches in noticing for trial will not defeat, if the motion is properly noticed with the notice of trial, and no injury to other party is shown by the delay.42

The right to a preference under the court rules, because the defendant is under arrest, is waived by his discharge on giving bail.43

3. Inherent power of court.] — The court has an inherent power to regulate its calendar, which cannot be abrogated by the Legislature. It may grant a preference to avoid hardship. 45 II. IN COUNTIES OTHER THAN NEW YORK, KINGS, QUEENS, ERIE AND IN THE SEVENTH JUDICIAL DISTRICT.

FORM No. 1319. Affidavit to obtain preference on the calendar, on facts not appearing in the

pleadings.46 [Title of court and action.] [Venue.]

A. B., being duly sworn, says:

I. [Here state the ground of preference, for instance, if under subd. 6:] That she is the plaintiff in the above-entitled action,

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which is brought to recover her dower in lands belonging to her late husband, as appears by the complaint.

II. That she has no sufficient means of support aside from the estate in controversy; that her income is wholly derived from [here state source if any]; and said income amounts to less than

dollars per week and she subsists in part only by the charity and assistance of her relatives [naming them] who reside

[or otherwise set forth facts substantiating the allegation]. III. That issue was joined in the action on the day of

, 19, and [state earliest time at which it may be tried; and circumstances, if any, as to delay, which may affect the application.]

IV. [If order to show cause is asked, or if application is ex parte:] That no previous application [etc.; see p. 1172]. [Jurat.]

[Signature.] [Serve copy of the order giving preference, with or before notice of trial or argument.]*

FORM No. 1320.

Notice of motion for preference.48 [Title of court and cause.]

Please take notice, that upon the pleadings herein, and upon the annexed affidavit of A. B., verified on the day of

, 19, the undersigned will move this court at a Special Term thereof to be held at the Court House [or, at the City Hall], in the city of , in the county of [or, will move the Hon. J. K., a justice of this court at — specifying place and hour],49 on the day of 19 [if motion is in court, add: at the opening of the court on that day, or as soon thereafter as counsel can be heard], for an order giving this cause a preference on the calendar of the [April] Trial Term of this court for the county of , on the ground [stating ground, as thus:] that the property of the defendant is held under

47 In this particular case of dower, the order may be ex parte, but in other cases notice must be given ( $ 793), and in this case, as well as in others, the order must be served before or with notice of trial or ar. gument. Bartlett v. Musliner, 92 N. Y. 646.

48 Must be served in such time that the order thereon may be obtained before and served with notice of trial. Code Civ. Pro., $ 793.

49 Bank of Attica r. Metrop. Natl. Bk., 91 N. Y. 239; N. Y. Code Civ. Pro., $ 793.

INTERLOCUTORY PROCEEDINGS.

INTERLOCUTORY PROCEEDINGS.— X. PREFERENCES. 1585

X. PREFERENCES.

an attachment issued in this case, 50 and for such other and further relief as may be just. [Date.]

[Signature and office address of], [Address] To

Attorney for [defendant]. Attorney for '(plaintiff].

FORM No. 1321.

Order giving preference on the calendar.51 [Title and recitals according to the case; see Forms 819 and

820, p. 1174.]

ORDERED, that this cause is entitled to a preference as [indicating ground], and the Clerk of this court is hereby directed to place said cause upon the Trial Term calendar for [April, 1907] as a preferred cause.

II. IN COUNTIES OF NEW YORK, KINGS, QUEENS, ERIE, AND IN THE

SEVENTH JUDICIAL DISTRICT.

FORM No. 1322.
Notice of motion for preference under statute over all other issues.52

[As in Form 815, p. 1171 of this volume, to the t, continuing:]52 for leave to move this cause as a preferred cause over all other issues not disposed of [and, in a jury case in the first district:

50 N. Y. Gen. Rules No. 36, which v. Third Ave. R. Co., 54 App. Div. provides also for preference where the 194, 66 N. Y. Supp. 603; Gilbert v. defendant is held under arrest. It Finch, 46 App. Div. 75, 61 N. Y. has been held that the court also has Supp. 300. an inherent power to give preference Of course the action cannot be upon to avoid hardship. Smith v. Keepers, the calendar before the notice of trial 5 Civ. Pro. Rep. 66, 66 How, Pr. 474. is served, or the motion for preference

For other cases, see the statutory noticed; but it should be on the calenumeration. N. Y. Code Civ. Pro., endar when the motion is heard. $ 791, etc.

Warden v. Post SS. Co., 39 App. Div. 51 This order must be made by the 543, 57 N. Y. Supp. 332. The motion court or a judge thereof.

should be denied if the notice of trial Local rules or calendar practice is not properly served. Veinstok r. may affect the proper wording of this Veinstok, 63 App. Div. 16, 71 N. Y. order.

Supp. 195. 52 Move upon the pleadings, as well 53 In the first district, the motion as an affidavit showing special rea- must be noticed for Part II of the sons for granting preference. See Trial Term, in a jury case, or Part next Form, and notes. Serve with III of the Special Term in an equity notice of trial; although it is not case. necessary that the notice be attached In the City Court of New York, to or served at the same time as the move at Trial Term, Part I. notice of trial, as it may be served Consult the local rules in other at any time within which the cause counties. could be noticed for trial. Rudolph

and for an order directing that this cause be placed upon the Day Calendar of Part of the Trial Term for the day of

, 19 , for trial and called after the causes then upon the said Day Calendar marked ready], and for such other and further relief as may be just.

FORM No. 1323.

Affidavit upon motion for preference.64 [Title of court and cause.] [Venue.]

A. B., being duly sworn deposes and says, that she is the administratrix above named. That the intestate, J. B., was her husband; that she was absolutely dependent upon him for support and maintenance, and that she is left without any means whatsoever except such as she is able to obtain from the charity of friends.55 That issue was joined in this action on the day of

, 19, by service of the defendant's answer. That notice of trial for the coming [June] term is now prepared and intended for service herewith.56

FORM No. 1324. Order granting preference on trial term calendar in first district.57 [Title (court order.)]

[After appropriate recitals.]

ORDERED, That the [plaintiff's] motion for a preference be and the same is hereby granted and the Clerk is hereby directed to

64 The motion for a preference over all other issues upon the trial term calendar in the first judicial district will be denied if based upon the pleadings alone; facts must appear by affidavit to invoke the court's discretion in favor of the application. Carroll v. Penn. Steel Co., 96 App. Div. 165, 89 N. Y. Supp. 199 (administratrix a sole plaintiff); Eising v. Young, 38 Misc. 12, 76 N. Y. Supp. 698 (libel); Davis v. Westervelt, 38 Misc. 13, 76 N. Y. Supp. 695 (trustee in bankruptcy). In the two last cases a preference was granted over issues for the same term only.

Receiver's motion for preference granted notwithstanding delar. Schlesinger r. Gilhooly, 111 App. Div. 158, 97 N. Y. Supp. 606.

Contra, if sought upon the Special Term calendar in that district. Jack son v. Jackson, 44 Misc. 44, 89 N. Y. Supp. 715 (administratrix a sole party).

55 Sustained in Dooley v. Paget, 38 Misc. 44, 76 N. Y. Supp. 906.

56 Motion denied when notice of trial was not properly served. Veinstok . Veinstok, 63 App. Div. 16, 71 N. Y. Supp. 195.

67 Submit notice of trial, with proof of service, as well as the moving papers.

The order granting preference in other counties will usually merely grant the preference and direct the clerk to place the cause upon the calendar as a preferred cause. See Form 1321.

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