Knox v. Dubroff , 45 N.Y.S. 271 ( 1897 )

Per Curiam:

Rule 36 of the General Rules of Practice provides : “ Whenever in any action an issue shall have been joined, if the defendant be imprisoned under an order of arrest in -the action, or if the property of the defendant be held under attachment, the trial of the action shall be preferred.” The plaintiff obtained an order of arrest, on which the defendant was held to bail, and in addition thereto obtained an attachment upon the defendant’s property, and upon this latter ground the action was one in which a preference was proper. This is not seriously disputed, but it is urged by the respondent that the rule granting the preference was made for the benefit of the defendant, and that, unless the latter moves, the plaintiff not- being injured, has no right to take advantage of the rule. The language employed, however, is not susceptible of any such construction. It defines under what conditions the trial of the action shall be preferred, and when the conditions are' present the benefit of the rule is as much available to the plaintiff as it is to the defendant. As the court was, therefore, in error in construing the rule the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a preference granted, with ten dollars costs to ajipellant to abide the event.

Present — Patterson, Williams, O’Brien, Ingraham and Parker, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted,.with ten dollars costs to appellant to abide event.