75 N.Y.S. 976 | N.Y. App. Div. | 1902
Lead Opinion
There is presented on this appeal the question as to whether the. plaintiff, in an action specified in section 791 of the Code of Civil' Procedure, is entitled as a matter of right to have his case advanced over cases noticed for trial for prior terms. In view of the large increase of the cases specified in this section of the Code, the condition of the calendar has become such that a- large part of each term of the trial courts is consumed in'the disposition of the cases which are thus placed ahead of the other actions On the calendar and slight progress is made in the call of non-preferred cases. It has undoubtedly been the unquestioned practice in this district to construe this section of the Code as giving to the parties to an action specified in section 791 the right to have the case advanced over cases previously upon the calendar ; but this practice seems to have grown up without question, the number of actions within those ^specified in this section having been so limited that no substantial' injustice was done. The right to have a case thus 'preferred is now questioned, and we must determine that question by construing the provisions of the Code. Under the Code of Procedure, as originally adopted (Laws of 1848, chap. 379), it was contemplated that
There was also included in the Code of Civil Procedure an article relating to preferred and deferred causes. By section 789 it is provided that certain actions brought by the People are entitled, on the application of the Attorney-General, to a preference over any other business at a term or sitting of any court of the State, irre
In the Code of Civil Procedure as originally passed (Laws of 1876, chap. 448), no method .was prescribed by which a case should be given the preference provided for by section 791 of the Code. Section 793 of the Code provided that in the cases where the facts which constituted a right to a preference did- not appear upon the pleadings, or other papers upon which the cause was to be tried, the party desiring the preference “ must procure an order therefor from the court- or a judge thereof upon notice to ■ the adverse party.” That section was -amended by chapter 497 of the Laws of 1888 so as to provide that “ No "action or- special proceeding shall- be placed as'a preferred cause upon, the calendar of any circuit' court or -trial term or. spécial term of any court, but the party desiring a. preference of any cause shall
We have here in this case the reference of a question to a court which necessarily involves judicial action. The question to be determined is as to whether a particular case should be advanced over other cases upon the calendar and tried at a particular time. The rights of the litigants, other than those of what have been called the preferred class, are at issue as well as the rights of the parties to the action in which the application is made. Under this section the court is bound, upon such an application, to determine that judicial question; but. when the Legislature says upon such an application it may grant a preference, it would seem that it was intended that the court to which the application is made should exercise its judicial discretion in determining whether the application should be granted. Assuming it to have been discretionary with ■the court below, should we on this appeal reverse the exercise of that discretion ? This action was for libel and within subdivision 11 of section 791 of the Code. The plaintiff moved for a preference upon an affidavit alleging the nature of the action. In opposition to this motion an affidavit was presented, showing that this action was first noticed 'for trial at the November nineteenth term; that upon the general calendar the last case called was No.' 3,374, which was noticed for trial for the June term, 1899; that the months of June and October, 1901, had been occupied exclusively with preferred causes or old causes which had been previously called; that the number of the last case noticed for October, 1901, was 12,299. No special reason was given why this case should be preferred over those cases noticed for June and October, 1899, except the fact that it-is an action brought to recover damages for a.libel. In October, 1901, the cases noticed for June, 1899, had not had an opportunity for trial, and it was asked that this action, first noticed for November, 1901, should be preferred over all of the other cases upon the calendar waiting for trial, upon the sole ground that the action is brought to recover damages sustained by the plaintiff in consequence of .a libelous publication in a newspaper. The learned trial judge who granted this application undoubtedly relied upon the general
There is nothing in the case of Hayes v. Consolidated Gas Company (143 N. Y. 641) which affects this question. It was there determined that a refusal of the court to grant a preference, to which the plaintiff claimed she was entitled under section 791 of the Code, where such claim was not opposed by the defendant, was not appealable to the Court of Appeals; that where a trial judge refused to try her case when she claimed she was entitled to have it tried, her remedy was not by appeal, but by mandamus to compel him to do his duty. The construction to be given to these sections of the Code was not before the court or discussed in the opinion.
In the case at bar, however, the court below having exercised its discretion, we do not care to interfere with it, and the order should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred.
Concurrence Opinion
(concurring):
This appeal challenges the regularity of the practice which has long prevailed in this department of giving statutory preferred causes preference at each new term of court over non-preferred causes on the general calendar noticed for trial at preceding terms.
This is an action for libel. Issue was joined herein on the 24th day of June, 1899. The case was duly noticed for the November term, 1901, and with notice of trial the plaintiff served a notice of motion for a preference for the first day of the term. The motion was granted, and the cause, which is No. 12,368 on the general calendar, was ordered placed at the foot of the Friday call calendar to be called as provided in rule 7.
The contention of appellant is that these preferred causes have a preference only over the non-preferred causes noticed for the same term, and that they cannot be taken up until all causes upon calendars for previous terms have been disposed of. The question hinges on the construction of that part of section 977 of the Oode of Civil Procedure which reads as follows:
“In the counties of New York, Kings, Queens, Richmond,*362 Albany,. Erie, Monroe and Onondaga, where a party has served a notice of trial, and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial,., or file a new note of issue for a succeeding term; and the action-must remain on the calendar until it is disposed of.”
As to the first judicial district this is a substantial re-enactment of . section 256 of the Code of Procedure. The other counties have .. been included by amendments enacted from time to time com-mencing with the county of Kings in 1882 (Laws of 1882, chap. 96). The appellant claims that the proper construction of this provision of the law is that in New York and the other counties where causes' are only required to be noticed once and only one note ,óf issue is required to be filed, those causes remain upon the calendar prepared ■ for the term for which they were noticed originally, and that they - must be tried, whether reached at that term or not, before any' cause, either preferred or non-preferred, subsequently noticed can-= be brought on. If this had been the intention of the Legislature I think it would have been expressed in more appropriate language The Legislature has.not provided that no new calendar shall be pre- - pared for succeeding terms until the old calendar is exhausted, but - on the contrary it has expressly provided by this section 977 -that a-calendar shall be prepared for each term of court. It is obvious, I think, that, the sole purpose of this enactment was to relieve: attorneys of the useless but exacting formality of frequently filing ■ notes of issue, and noticing their causes in counties where there are large calendars and many terms of court, and where the trials of ■ issues were often delayed and the rights of litigants prejudiced either by an omission to refile a note of issue or renotice a cause, or the right to move a cause at a pending term was lost by noticing it for a future term without reservation. The Legislature, I think, merely intended that in making up each new calendar the clerk1 should-add thereto, without the filing of a new note of issue^ causes regularly placed on the preceding calendar, but which had not been1' disposed of. • This- construction leaves the practice uniform throughout the-State as to the preference of preferred causes over non-preferred causes, no matter- how often on previous calendars, the: only difference being with reference to the manner of securing- the' preference. .In the counties of New York, Kings, Queens, Erie,
I have examined the other provisions of the Code' relating to preference in civil and criminal causes, both at Trial Term and on appeal (Code Civ. Proc. §§789, 790, 791, 793), and I find nothing therein which militates against the construction here indicated.
The fact that it has not been the practice in this district to prepare a new calendar for each term of court, as required by section 977 of the Code of Civil Procedure, cannot affect the proper construction of the statute with reference to preferences. Although the question before us is not whether these calendars must be printed, it may be observed that the non-compliance with the law in that regard has prejudiced no one and has resulted in A large saving of money to the taxpayers. In the county of New York, which constitutes the first judicial district, new Trial Terms, consisting of many parts, commence on the first Monday of each month, except the months of July, August and September. The general trial calendar is so large that, except in causes which are preferred, issues of less than two years’ standing have not yet been reached for trial. Of what use or benefit would it be to the court or to the litigants whose causes cannot be reached or to their attorneys for the city to incur the enormous expense of printing new .calendars involving all the issues, new and old, for each new term of court? For the purpose of obviating this unnecessary expenditure of money, this court has prescribed by rule I of the Trial Term Rules that a general calendar shall be made up from time to time as ordered by this court; that it shall be the calendar for the several Trial Terms until a new calendar is ordered to be made; that causes subsequently noticed for trial in which notes of issue are filed shall be added to the general calendar at the foot thereof. This rule, except in so far as it dispenses with the preparation of new calendars, is entirely consistent with the provisions of the Code relating to the preparation of calendars and the giving of preferences. How else could the newly-noticed issues have been added? It would not be practicable to prepare a skeleton calendar to provide for the insertion of such causes in the
It follows that the order appealed from was authorized and it should be affirmed.
Order affirmed, with ten dollars costs and disbursements.