The order denying the plaintiff’s motion to put this cause- upon the preferred calendar must be reversed. It appears from the memorandum of the justice who made the order that the motion was “ denied on the ground of laches.” The action was entitled to a preference under subdivision 11 of section 791 of the Code of Civil Procedure. The plaintiff’s practice conformed to the requirements of the statute, and his right to a preference was not lost by neglect. Issue- was joined on October 31, 1899, by the service of the defendant’s answer. The time to serve an amended answer would not have expired until November twentieth. The first term for which the case could have been safely noticed for trial, in view of what was decided in Haskin v. Murray (29 App. Div. 374), was January, 1900, and during that month the plaintiff was absent in Europe. Notice of trial for February, accompanied by an affidavit stating the claim for a preference, was served for the.February term. a There is nothing in the practice which requires a party to notice his cause for trial for the first term after it shall be at issue, or imposing any penalty .upon the plaintiff for a failure to so notice it.” (Bailey v. Miles, 46 App. Div. 608.) “ There is no provision requiring a notice of trial for any particular term after the joinder of issue, except that neglect for an unreasonable time to prosecute the action may result in its dismissal.” (Levy v. Hanneman, 4App. Div. 32.)
Under the circumstances of this case there was no neglect or delay for an unreasonable time. The case was noticed for trial and a preference was claimed immediately upon the plaintiff’s return from Europe, and with but one term intervening between the time at which notice of trial could with safety have been given and the term for which the notice was actually served.
Order reversed, with ten dollars costs and disbursements. Motion for a preference granted, without costs.
Present — Van Brunt, P. J., Rumsey, Patterson, Ingraham and Hatch, JJ.
Order reversed,- with ten dollars costs and disbursements, and motion for preference granted, -without costs.