Marcus A. Downing, Appellant, v. Brooklyn and Queens Transit Corporation, Respondent

Marcus A. Downing, Appellant, v. Brooklyn and Queens Transit Corporation, Respondent. [MAJORITY] Order denying plaintiff’s motion for a preference in the trial of an action to recover damages for personal injuries reversed upon the facts, with ten dollars costs and disbursements, and motion granted, without costs. The plaintiff, now seventy years of age, suffers from physical ailments which, a physician swears, will cause his death within a few months, or at most one year. Nothing appears to show that defendant will be prejudiced by an early trial. We think the plaintiff should have the benefit of a trial, which may be denied him if a preference is not granted. The discretion of the Special [Trial] Term was improvidently exercised. Young, Carswell and Scudder, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote to affirm.