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

34

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

32 N. Y. Code Civ. Pro., §§ 789-793.

33 Gen. Rules Nos. 36, 39.

34 Code Civ. Pro., § 793. See Form of note of issue, post, Form 1602. 35 Id.

36 Morse v. Press Pub. Co., 71 App. Div. 351, 75 N. Y. Supp. 976; Schumann v. Brooklyn Heights R. Co., 71 N. Y. Supp. 1095, 32 Civ. Pro. Rep. 25. 37 Code Civ. Pro., § 793; Manhattan Co. v. Dunn, 13 N. Y. Civ. Pro. Rep. 166.

38

2. Waiver.] The right to the statutory preference may be lost in various ways: a husband failing to pay alimony is not entitled; 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,11 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,

38 Fennessy t. Fennessy, 111 App. Div. 181, 97 N. Y. Supp. 602.

39 Montgomery v. Daniell, 91 App. Div. 18, 86 N. Y. Supp. 344.

40 Emerick v. Met. St. Ry. Co., 38 Misc. 45, 76 N. Y. Supp. 901. Even though a note of issue is not filed. Am. Exch. Bank v. Yule Mach. Co., 58 App. Div. 320, 68 N. Y. Supp. 1097.

41 Bazuro v. Johnson, 71 App. Div. 255, 75 N. Y. Supp. 822; Eckhard v. Jones, 45 App. Div. 562, 61 N. Y. Supp. 257; Marks v. Murphy, 27 App. Div. 160, 50 N. Y. Supp. 622.

42 See Rhoads v. Met. St. Ry. Co., 50 App. Div. 160, 63 N. Y. Supp. 724. 43 Boeger v. Hoffman, 58 App. Div. 540, 69 N. Y. Supp. 258.

44 Riglander v. Star Co., 98 App. Div. 101, 90 N. Y. Supp. 772, aff'd, 181

N. Y. 531.

45 Smith v. Keepers, 5 Civ. Pro. Rep. Advanced age alone is not sufficient. App. Div. 190, 95 N. Y. Supp. 769.

46 Sustained by Yates v. Stiles, 15 Wkly. Dig. 113.

Affidavit is necessary when the grounds of preference do not appear on the pleadings. The official or representative capacity in which a

66, 66 How. Pr. 474.

Crawford v. N. Y. City Ry. Co., 108

party sues, and the infancy of one appearing by guardian ad litem, are facts appearing on the pleadings, within this rule. Jackson v. Jackson, 44 Misc. 44, 89 N. Y. Supp. 715.

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].

at

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.]*7

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],40 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 argument. 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 v. Metrop. Natl. Bk., 91 N. Y. 239; N. Y. Code Civ. Pro., § 793.

an attachment issued in this case,50 and for such other and further

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

53

[As in Form 815, p. 1171 of this volume, to the †, continuing:] 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:

It

50 N. Y. Gen. Rules No. 36, which provides also for preference where the defendant is held under arrest. has been held that the court also has an inherent power to give preference to avoid hardship. Smith v. Keepers, 5 Civ. Pro. Rep. 66, 66 How. Pr. 474.

For other cases, see the statutory enumeration. N. Y. Code Civ. Pro., § 791, etc.

51 This order must be made by the court or a judge thereof.

Local rules or calendar practice may affect the proper wording of this order.

52 Move upon the pleadings, as well as an affidavit showing special reasons for granting preference. See next Form, and notes. Serve with notice of trial; although it is not necessary that the notice be attached to or served at the same time as the notice of trial, as it may be served at any time within which the cause could be noticed for trial. Rudolph

v. Third Ave. R. Co., 54 App. Div. 194, 66 N. Y. Supp. 603; Gilbert v. Finch, 46 App. Div. 75, 61 N. Y. Supp. 300.

Of course the action cannot be upon the calendar before the notice of trial is served, or the motion for preference noticed; but it should be on the calendar when the motion is heard. Warden . Post SS. Co., 39 App. Div. 543, 57 N. Y. Supp. 332. The motion should be denied if the notice of trial

is not properly served. Veinstok . Veinstok, 63 App. Div. 16, 71 N. Y. Supp. 195.

53 In the first district, the motion must be noticed for Part II of the Trial Term, in a jury case, or Part III of the Special Term in an equity

case.

In the City Court of New York, move at Trial Term, Part I. Consult the local rules in other counties.

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

of

day 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.54

[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

54 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.

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

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

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 v. Veinstok, 63 App. Div. 16, 71 N. Y. Supp. 195.

57 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.