Aloiz Woerner, Respondent, v. Star Company, Appellant

Aloiz Woerner, Respondent, v. Star Company, Appellant. Preference on the trial calendar—chapter 173 qf the Laws of 1904 is unconstitutional — the preference only prevails over causes noticed for the.same term, not as to all cases on the calendar. Section 793 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1904, relating to the preference of causes on the trial calendar, which provides that if, upon an application for a preference, it appears that the cause is entitled to preference and is intended to be-mov.ed for trial at or for the term, for which the application is made, the court or justice must designate a day certain during the term, on which day the cause shall, then, be heard, is unconstitutional. An application for the preference of a libel action should only prevail as to other causes noticed for the same term, and not as to all causes then upon the calendar of the court. Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 10th day of January, 1905, granting the plaintiff’s motion for a preference. Clarence J. Shearn [Edward A. Freshman with him on the brief], for the appellant. Henry A. Powell, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This appeal is by the defendant in an action for libel, from an order of the Trial Term granting á motion for a preference and designating the first Monday in May, 1905, for trial. The amendment of section 793 of the Code of Civil Procedure, by chapter 173 of the Laws of 1904, that if it should appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the application is made the court or justice must designate a day certain during the term, on which day the said cause shall then be heard, was declared unconstitutional by the decision of this court in the first department in Riglander v. Star Company (98 App. Div. 101; affd., 181 N. Y. 531). The order must, therefore, be modified by striking therefrom that part which designates the first Monday in May, 1905, for trial, and as modified affirmed, without costs of this appeal to either party. The preference of this cause should only prevail as to other causes noticed for the same term, and not as to all causes then upon the calendar of the court. (Schuman v. Brooklyn Heights R. R. Co., 32 Civ. Proc. Rep 25 ; 71 N. Y. Supp. 1095; affd., 64 App. Div. 620.) Bartlett, Rich and Miller, JJ., concurred; Woodward, J., dissented. Order modified by striking therefrom that part which designates the first Monday in May, 1905, as the time for the trial, and as modified affirmed, without costs of this appeal to either party.