71 N.Y.S. 1095 | N.Y. Sup. Ct. | 1901
The right to a statutory preference, under section 791 of the Code of Civil Procedure, must be availed of in the manner provided by section 793; and, where no order is required, if the cause is entitled to a preference, it shall be placed by the clerk “among the preferred causes at the head of the calendar.”
The question now presented is, on what calendar shall the preference obtain, if not the calendar for the term for which the cause is moved for trial? And, again, shall a junior issue have preference over causes on a calendar for an earlier term, and awaiting call for trial in their regular order? After issue joined, and with the service of a notice of trial in this county, a notice that an application will
I really appreciate that there are from time to time cases that should be preferred out of their order, and over earlier issues, though upon previous calendars,—i. e. those upon the determination of which the settlement of estates and of important rights depends; where there is danger of the death of a party, or, in some cases, of an important witness; where one’s liberty depends upon the result; and where, in fine, because of peculiar conditions and circumstances, justice requires a preference. The court has control over its calendar, and has inherent power and authority, in a proper case, aside from the statutory provisions, to grant a preference. The statutory preferences allowed are many, and the average action on contract, unless triable within an hour, and hence as a short cause, may well be deemed to be a deferred action, however meritorious and needy the plaintiff, however necessary to save his business existence and financial reputation, and though the defense may have been interposed for delay only. Unless there be some especial circumstance demanding it, I can see no good reason for delaying the tradesman and the merchant in an honest effort to collect a contract debt by giving preference to actions for negligence for libel and slander, where the date of issue is more than a year later than the former.
My conclusion is that the contemplation of section 793 is that a cause entitled thereto shall have preference on the calendar for the term for which the cause is moved, and over causes upon the calendar for that term, and not, unless for good cause shown, over issues upon preceding calendars waiting trial.