#### Gustav Schwartz, Appellant, *v.*Emma Wolfrath, as Administratrix, Etc., Respondent. Andrew Siefermann, Appellant, *v.*Emma Wolfrath, as Administratrix, Etc., Respondent.

(City Court of New York, General Term,

August, 1898.)

Preference of trial — Code Civ. Pro., § 791, subd. 5, entitles either party . to claim a preference.

The preference of trial, given by subdivision 5 of section 791 of the Code of Civil Procedure, to an action in which an administratrix is sole plaintiff or sole defendant, is given to the action, is not personal - to the administratrix, and may be accorded in spite- of her opposition.

Appeals from orders denying plaintiffs’ motions for a preference. ■

John F. Frees, for appellants.

Joseph I. Green, for respondent.

*407Olcott, J.

These are appeals from orders denying plaintiffs’ motions for a preference of the trial of the causes, which motions were based upon the fact that in each of the cases an administratrix is the sole defendant.

The court below denied the motions, upon the ground that the preference provided by subdivision 5 of section 791 of the Code is personal to the administratrix and is not to be properly accorded in the face of her opposition.

An examination of the entire section convinces us to the contrary.

Its first subdivision provides for a preference of an action brought by or against the People of the state, where the attorney-general gives notice, at the proper time, of his desire for a preference.

Subdivision 2 makes an exactly analogous* provision with regard to actions by or against the mayor, aldermen and commonalty of the city of Hew York, and the third subdivision has been construed to mean exactly what would seem to clearly appear from its language, that the corporation counsel alone can elect to have the preference accorded. Simpson v. Mayor, Freedman, J., Sp. T., Sup. Ct., N. Y. Law Journal, March 6, 1896; Mooney v. Mayor, Daly, C. J., Sp. T., Common Pleas, N. Y. Law Journal, February 8, 1883.

■ Subdivision 5 provides, among other things, for a preference in an action where an administratrix is the sole plaintiff or the sole defendant, and there are no restrictive provisions, such as are contained in subdivisions 1 and 2, above mentioned, as to who may move for the preference; nor are there any such restrictions contained in subdivision 9, which provides for the preference of an action by or against a sheriff, and to which we now refer with relation to the- decisions of this court in the case of Walker v. Tamsen.

In that case a Special Term decision of this court (N. Y. Law Journal, May 13, 1896), denied the plaintiff’s motion for a preference on the ground that, -in the learned justice’s opinion, the preference is personal to the sheriff defendant, who opposed the motion.

So that such decision is a precedent for the motion now under consideration; but in affirming it, the G-eneral Term of this court did so not only upon the ground stated in the Special Term decision, but also, and perhaps mainly, because the motion was defectively and irregularly made in another respect, which was re*408ferrecl to in the General Term opinion, 18 Misc. Rep. 734; and that opinion is, therefore, not a controlling guide upon the pending • question.

Other than the decisions above referred to, we can find none reported which bear upon the question; and it will be observed that Simpson v. Mayor, and Mooney v. Mayor, *supra,*are clearly distinguishable from the case at bar, because they interpret a different subdivision of section 791, and one containing the restrictive provision which is' omitted from subdivision 5.

The preference seems to be given by subdivision 5 to the action and not to any party thereto; there is no language of. the subdivision, nor of a'ny rule of the Supreme. Court or of this court framed theréunder, which restricts these plaintiffs from moving for a preference; nor do we think that there is any equitable reason which calls upon us to read in such language; because, thongh the relief may primarily have been suggested by the necessity, an executor or administrator is under, to advance, his litigations so as to promptly wind up the affairs of his estate, it is oftentimes necessary for the protection of persons, having claims against.such representatives,'to secure speedy adjudications thereupon, and this consideration may also have moved the framers of this section of the Code.

■ And rights of preference given to causes by statute may not be limited or abridged by the court by rule or decision. McArthur v. Commercial Fire Ins. Co., 67 How. Pr. 510.

The privilege of a preference of a cause upon the calendar is á substantial right, and an appeal to the General Term lies from a denial thereof. Buell v. Hollins, 16 Misc. Rep. 551.

The orders appealed from should be reversed, with $10 cpsts . and disbursements in 'each case.

Conlan and Schuchman, JJ., concur.

Orders reversed, with $10 costs and disbursements.