This order should be reversed. By it is granted a preference to the defendant in the trial of the cause upon the ground-that he was in actual custody and enduring imprisonment under an order of arrest issued in the action and was unable to give bail. The preference was- seemingly granted in accordance with rule 36 of the General Rules of Practice. The application was made upon an affidavit and upon what was claimed to be a notice of trial, and it was to have the cause “ set down for an early day for trial,” it being upon the general Special Term calendar of the court. The order provides that the cause be set down for trial for June 11, 1901, and the clerk of the court was directed to put it upon the day calendar for trial upon that day. Issue was joined in the cause on May 7, 1901. On June first the defendant served a notice of trial dated that day for the June term to begin on the first Monday of June (the third). No other notice of trial was served and it does not appear that there was ever any consent given to have the cause placed on the calendar for any particular date. The notice of trial served by the defendant was promptly returned by the plaintiff’s attorney, who refused to accept it on the ground that it was insufficient notice.
It plainly appears that fourteen days’ notice of trial was not given. . The plaintiff was entitled to that notice. The cause could not be put upon the day calendar for trial until such notice, peremptorilv required by the Code of Civil Procedure (§ 977), was given and until it was upon the general calendar.
There was no authority in the court below to make the order appealed from and it should be reversed, with ten dollars costs and disbursements, and the motion to put the cause on the day calendar should be denied, with ten dollars costs.
Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.