#### Amelia Porath, an Infant, by Katerina Porath, her Guardian, Respondent, *v.*Sarah J. O’Shaughnessy, Appellant.

(City Court of New York, General Term,

March, 1898.)

1. ¡City Court of New York — Waiver of a preference upon the calendar by a failure to demand it in time.

Service, in the City Court of New York,,of a notice of trial, not accompanied by the notice of a motion for a preference upon the calendar to which the plaintiff, as an infant, deems herself entitled, constitutes a waiver of the preference.

*2.*Same — An action for .negligence cannot be placed on the short cause calendar.

An action predicated upon negligence, is not entitled to a place upon the -short cause calendar of the City, Court of New York, as that is designed for actions on contract which can be tried within an hour.

Appeal from an order made at Special ¡Term, granting the motion made by the "plaintiff to place this action on the short cause calendar of this court, on the ground that the plaintiff is an infant suing by her guardian.

S. P. Cahill, for appellant.

Melvin G. Palliser, for respondent.

O’Dwyer, J.

The action was at issue by "the service o-ff an answer/ "oh October "18, '1897, and *k*notice of trial was served by *253the plaintiff on. the 19th day of January, 1898. Thereafter, on the 28th day of January, 1898, plaintiff served a notice of ¡motion to place this action on the short cause .calendar, under section 791 of the Code '¡of Civil Procedure, subdivision 5, and with said notice ¡of motion served an affidavit in support ¡ of the] same¡, setting forth the right of the plaintiff to a preference.

The plaintiff, in order to avail herself of the: right to ,a preference under section 791 of the Code of Civil Procedure, should have, at the time :of the service of the notice of trial, served therer with a notice of motion in accordance with the provisions of section 793 of the Code of Civil Procedure.

The plaintiff, in her notice of trial, set forth an .allegation “ that plaintiff claims a preference for the reason that the sole plaintiff is an infant.”

This certainly did not cover or fulfill the requirements of section 793 in regard to serving a notice ,of motion for preference with the ¡notice of trial, for the material part of that section, on this appeal, distinctly says: “ But the 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 * * *

By the special rules of this court the application can be made at the Special Term instead ¡of the Trial Term of this court, but rule 14 of the City Court Buies does not purport to, and can in no way override the distinct- and clear, provisions of section 793 which, in its reservation or exception; only allows the court to. designate the time at which or the place where the application can be made.

It has been held that when the notice of trial does not contain, or is not accompanied by the notice of motion for a preference, the party desiring to move .the cause on the preferred calendar thereby waives his right. Manhattan Ry. Co. v. Dunn, 13 Civ. Pro. 166; Fox v. Quinn, 12 N. Y. Supp. 725.

Fiu’thermore, the cause has no place ion the short cause calendar. That calendar is concerned with the trial of causes on actions on contract that can be tried within one hour and, before placing a cause thereon, it is necessary to make it appear that the same can be .'tried within that time. Bule 14, City Court Buies.

This action is brought to recover damages for personal injuries sustained through thle negligence of the 'defendant.

*254• The order appealed from should be reversed, with $10 costs,' and the motion denied, without costs. . ...

Eitzsimoes, Oh. J., concurs.

Order reversed, with $10 .costs, and motion denied, without costs.