185 A.D. 803 | N.Y. App. Div. | 1919
The notice of motion for the order was not served with the notice of trial as required by section 793 of the Code of Civil Procedure, and rule 3 of the Trial Term Rules, and the application should have been denied on that ground. (Marks v. Murphy, 27 App. Div. 160; Eckhard v. Jones, 45 id. 562; Meyerson v. Levy, 117 id. 475; Mclntire v. National Nassau Bank, 150 id. 668.)
But if the application had been timely made, it should not have been granted.
The order was granted solely on the ground that a material witness for the plaintiff was seventy-three years of -age and ill, and it is claimed, although the evidence in support of the contention is not very satisfactory, that there is reasonable ground to believe that he will not be able to attend the trial unless it shall take place soon. The probable inability of the witness to attend the trial owing to advanced age, or illness, would warrant an order for his examination under subdivision 5 of section 872 of the Code of Civil Procedure, but does not constitute a statutory ground for the preference of the trial of the issues (See Code Civ. Proc. § 791), nor is it a ground for such a preference under the General Rules of Practice, for there is no such rule regulating it or the Special Rules of Practice in this department. (See Trial Term Rules, rule 3, and Special Term Rules, rule 8.) We are also of opinion that it does not afford a sufficient ground for granting a preference of the trial of the issues herein over other issues under the authority of subdivision 10
This court has entertained appeals and reversed orders granting and denying applications for preferences ever since causes in this jurisdiction and in certain other counties were, by section 793 of the Code of Civil Procedure, as revised and re-enacted by chapter 410 of the Laws of 1895, placed in a separate class from those in other parts of the State, which are governed by the provisions of the forepart of the section requiring that an order for a preference should be obtained as therein provided and served with the notice of the trial and which orders, it is provided, are not appeal-able. Now for the first time the appealability of orders in this district granting or refusing a preference is challenged on the authority of the decisions in Empire City Racing Assn. v. National Fair & Ex. Assn. (167 App. Div. 126; 170 id. 956) which apparently hold generally, in effect, that if the trial court erroneously construes the statutory provisions for a preference and grants or withholds a preference thereunder, or for any other reason, or at will, there can be no review of the order, owing to said provision in the forepart of section 793 expressly so providing. The action in which those decisions were made, however, was pending in Westchester county which was clearly left subject to said provision prohibiting appeals from such orders, and although the decisions are not expressly placed on that ground and attention is not drawn to that fact, the opinions must be limited to the facts on which the adjudications were made.
In the counties still clearly left subject to that provision of said section 793, as was the county of Westchester, it
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Page, Shearn and Merrell, JJ., concurred.
Order of December 18, 1918, reversed, with ten. dollars costs and disbursements, and motion denied, with ten dollars costs, and appeal from order of December 26, 1918, dismissed.