1 DAMAGES CHARGEABLE TO PRELIMINARY INJUNCTION,-continued. and what would have been received therefor had the bank bid for the same cannot be recovered as damages suffered by reason of the injunction, as the conclusion of the bank not to bid at all should be ascribed to the uncertainty which the litigation suggested as to the validity of the bonds rather than to the issuing of the injunction. Sweet v. Mowry, 71 Hun, 381; 55 St. Rep. 51; 25 Supp. 32. Where the general term had held that the property of a railroad company could not be taken from the hands of a receiver until a board of directors was elected, and that a board could only be elected on the day fixed by the by-laws for an annual election, and on that day, pursuant to notice, a meeting of the stockholders was held at which almost the entire stock was represented, and immediately after the meeting was organized, an injunction, forbidding an election, was served, which could only be vacated by the judge who granted it, or by the general term sitting at a distant city, the amount paid for a special train, there being no regular train by which defendant's counsel could reach such city on the day of the election, in order to obtain a dissolution of the injunction, is allowable as part of the damages sustained by reason of the injunction, and defendants were justified in incurring this unusual expense, because, unless an election was held that day, it was perhaps certain that none could be held for a year, and, as very large interests were at stake, it was important that the injunction should be removed at once, and that they should be allowed to elect their directors and manage their own affairs. Crounse v. Syracuse, Chenango & N. Y. R. R. Co. 32 Hun, 497. The value of the use and occupation during the continuance of an injunction by a third party restraining a landlord from prosecuting summary proceeding against his tenants for the possession of the premises is not damages sustained by reason of the injunction. McDonald v. James, 38 Super. 76. Items of damage growing out of the suspension of work on the part of the defendants and their several contractors and subcontractors in getting out bark for the use of the defendant's tannery are properly included in the damages sustained by reason of the continuance of the injunction. Lyon v. Hersey, 32 Hun, 253. Where defendant, as plaintiff in an action against a nonresident firm attached a cargo of its hides, which plaintiff, claiming to own, obtained an injunction restraining defendant from interfering with, and took the hides and sold them, the amount of the judgments in the attachment aetion and the injunction action are properly damages sustained by reason of the injunction. Taacks v. Schmidt, 18 Abb. Pr. 307. The expenses incurred in foreclosing and preparing to sell, including auctioneer's fees and advertising, are properly allowed as damages sustained by reason of a temporary injunction, restraining defendant from DAMAGES CHARGEABLE TO PRELIMINARY INJUNCTION,-continued. selling personal property under a chattel mortgage, served upon defendant at the place of the sale a few minutes before the time when the sale was to have taken place. Willett v. Scovil, 4 Abb. Pr. 405. LESSER v. DRY DOCK, E. B. & B. R. CO. et al. [33 Misc. 388; 101 St. Rep. 587; 67 Supp. 587.] (City Court of New York, General Term. December 13, 1900.) INFANT PLAINTIFF-PREFERENCE ON THE CALENDAR. Code Civ. Pro. § 791, subd. 5, providing that an action is entitled to preference on the calendar in which an infant is the sole plaintiff, entitles an infant plaintiff to a preference as an absolute right, where the claim is perfected by the service of a motion therefor with the notice of trial, as required by section 793; and delay, after issue joined, in placing the case on the calendar, cannot defeat the same. NOTE. PREFERENCE ON THE CALENDAR. a. Scope. b. Statutes and court rules. c. Application of statutes. d. Right to preference. 1. When lost by laches. 2. Waiver. 3. How regained. 4. In representative capacity. e. Practice. 1. What is sufficient notice of motion. 2. Where motion to be made. 3. Appeal. a. Scope. This note is a continuation of a note on the same subject in 4 Ann. Cas. 253, and covers all phases of the question contained in all the New York reports since the year 1897. b. Statutes and court rules. Since the writing of the previous note, besides the various amendments City Court of N. Y., General Term. Appeal from trial term. [Dec. Action by Grace Lesser, an infant, by Albert Lesser, her guardian ad litem, against the Dry Dock, East Broadway & Battery Railroad Company and another. From an order denying, on the ground of laches, a motion for a preference on the calendar, plaintiff appeals. Reversed. Argued before MCCARTHY, SCHUCHMAN, and O'DWYER, JJ. Louis J. Vorhaus, for appellant. Henry A. Robinson and John T. Little, for respondents. PER CURIAM. The plaintiff, having complied with the only PREFERENCE ON THE CALENDAR,-continued. to section 791 of the Code of Civil Procedure, which contains the general provisions for the order of preference on the calendar of various actions, three new subdivisions have been added thereto as follows: § 791, Code of Civil Procedure. 3a. In the court of appeals or the supreme court, an appeal taken by either party in an action or special proceeding from a judgment or order declaring a legislative enactment unconstitutional, is entitled on motion of the appellant, to a preference over any business irrespective of its place upon the calendar, except as to preferences provided for in sections seven hundred eighty-nine, seven hundred ninety, and the preceding subdivisions of this section. Added by L. 1899, chap. 585, taking effect September 1, 1899. 11. In any court an action for libel or slander. Added by chap. 136 of laws of 1898. 12. In the court of appeals all appeals from judgments of affirmance rendered by the appellate division of the supreme court in cases enumerated in subdivision two of section one hundred and ninety-one of this act, where the decision of the appellate division has been unanimous and a appeal has been taken or allowed as in said subdivision of said section provided. Added by L. 1899, chap. 355, taking effect September 1, 1899. In addition to the court rules set forth in the previous note, two other rules are passed upon in the discussion of questions of preference arising in cases in this note, which provide as follows: 1900] Lesser v. Dry Dock, E. B. & B. R. Co. condition prescribed by the statute, is entitled to a preference as a matter of right; and delay, after issue joined, in placing the case on the calendar, cannot defeat this right. Subdivision 5 of section 791 of the code provides that an action is entitled to a preference in which an infant is the sole plaintiff. The pleadings show that this is such a cause. The record shows, and it is not disputed, that the notice of motion for preference was served ith the notice of trial, as required by section 793 of the code. The claim of preference thus perfected thereupon became an absolute right. Rhoads v. Metropolitan St. Railway Co. 50 App. Div. 160; 97 St. Rep. 724; 63 Supp. 724; Levy v. Hanneman, 47 App. Div. 32; 96 St. Rep. 240; 62 Supp. 240. Order appealed from reversed, with $10 costs and disbursements, and motion granted, without costs. PREFERENCE ON THE CALENDAR,-continued. There shall be a special calendar upon which shall be placed all actions which have been awarded or are entitled to a preference either under express provisions of law or by the General Rules of Practice, or by any special rule, which calendar shall be called and the cases thereupon tried and disposed of at Part 2 of the Trial Term, Any party entitled to have a case preferred may, upon two day's notice, apply to the court at this part to have the case placed upon such special calendar. There shall also be placed upon this calendar for trial all issues sent from the Special Term for trial by jury; all issues in special proceedings to be tried by jury; and all issues in equity actions as to which the parties are entitled by law to a jury trial where such issues have been framed to be so tried. All such cases shall be placed upon this special calendar in the order of the filing with the clerk of the said part of the order granting the preference or directing the issues to be tried and shall be tried in such order as may be directed by the Justice assigned to hold such part. Rule III of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District. In all actions brought for the foreclosure of a mortgage or for the foreclosure of mechanic's liens, either party may apply to the Special Term, Part 3, upon notice of two days to the adverse party to have the case placed upon the preferred calendar, to be called in Part 3 of the Special Term, and if it shall appear to the court upon such application that the trial will not be a protracted one, or that for any special reason the case PREFERENCE ON THE CALENDAR,-continued. should be promptly disposed of, it shall be placed upon the preferred calendar for trial. Rule X of the Rules for the Regulation of the Special Terms of the Supreme Court in the First Judicial District. c. Application of statutes. Chapter 355 of the Laws of 1899, which added to section 791 of the Code of Civil Procedure a new subdivision, numbered 12, giving a preference in the court of appeals to appeals from unanimous judgments of affirmance rendered by the appellate division, applies only to appeals which shall thereafter be taken, and not to pending appeals upon the existing calendar. Coxhead v. Johnson, 160 N. Y. 369; 54 N. E. 780. Where a motion for a preference in an action of foreclosure is made under rule 10 of the Rules for the Regulation of the Special Terms of the Supreme Court in the First Judicial District, the provision of section 793 of the Code of Civil Procedure requiring a party to serve with his notice of trial a notice that an application will be made to the court, at the opening thereof, for leave to move the same as a preferred cause, does not apply, and, although the notice of motion for a preference is served after the notice of trial, the preference will be granted where the defendant has been in no manner prejudiced by the delay, or neglect to serve both notices together. Coffin v. McLaughlin, 24 Misc. 107; 87 St. Rep. 297; 53 Supp. 297. The provisions of section 793 of the Code of Civil Procedure, requiring service of notice of application for a preference of any cause on the calendar to be served with the notice of trial, do not apply to a motion for a preference in an action to foreclose a mortgage, made under rule 10 of the Rules for Regulation of the Special Terms of the Supreme Court in the First Judicial District, and addressed to the discretion of the court. Germania Life Insurance Co. v. Powell, 29 Misc. 424; 95 St. Rep. 942; 61 Supp. 942. Rule 14 of the special rules of the City Court of New York does not purport to, and can in no way override the distinct and clear provisions, regarding the time to serve the notice of motion for a preference, of section 793 of the Code of Civil Procedure 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. Porath v. O'Shaughnessy, 23 Misc. 252; 85 St. Rep. 169; 51 Supp. 169. Hamilton v. Fourth Estate Co. 90 St. Rep. 656; 56 Supp. 656; 28 Civ. Pro. 262. d. Right to preference. The right to a preference under rule 36 of the General Rules of Prac |