122 N.Y.S. 998 | N.Y. Sup. Ct. | 1910
This is a motion for a preference, but not made till February 14, 1910, after the case had been noticed for the December, 1909, term of this court. The preference is sought upon the ground that the plaintiff is ill with a progressive disease and will probably not survive the trial of the action, if he is compelled to wait until it is reached in its regular order upon the calendar; and it is urged that the cause he preferred, not only over the issues for the December term, hut also over issues upon preceding calendars awaiting trial.
It is clearly established that, in this county, applications
The present application, addressed to the discretion of the court, is one in which the preference should he granted. The action, being for personal injuries, abates on the death óf the plaintiff. The moving papers contain an affidavit of a physician, which sets forth that he had examined the plaintiff on February 4, 1910; that he found him suffering from a disease of a tubercular character; that the disease is a progressive one from which plaintiff cannot recover, and that it is of such a character that, in his opinion, it will cause" the plaintiff to grow weaker and will cause his death within four months, if not earlier. On the other hand, there is nothing to indicate that a speedy trial of the case will, in any way, prejudice the rights of the defendant.
The motion for the preference is accordingly granted, and the clerk is ordered to place the cause on the ready calendar of this court for the 14th day of March, 1910, for trial.
- Motion granted.