Hickman v. William Schimper & Co. — 121 A.D. 257

Majority

p. 257

Charles H. Hickman, Respondent, v. William Schimper & Company, Appellant.

Second Department,

July 23, 1907.

Headnote

Trial—preference—extréme age of party.

A trial judge may, in his discretion, grant a preference,, because the plaintiff by reason of extreme age is not likely to live until the cause can he reached in its regular order.

Appeal "by" the defendant, William Schimper & 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 8th day of .May, 1907. ■ • .

Louis Cohn [Frank V. Johnson with him on the brief], for the appellant.

James C. Cropsey, for the respondent.

The calendar judge entertained and granted a motion of the -plaintiff to prefer this cause, and set it .down for "trial on a day certain. This was done because .of the .extreme age of the plaintiff, and the likelihood that he might not live until the cause should be reached in its regular order for trial. The appeal from the order of the calendar judge is based on an erroneous notion of the ■authority of trial judges. We do not in this judicial department interfere with trial judges in respect of their' calendar rules and practice. The section of the.Code relative to preferences must be availed of by a party wanting a preference as of right; but that is not this case.

The order should be affirmed.

Hirschberg, P. J., Hooker, Rich and Miller, JJ., concurred.

Order affirmed/ with ten dollars costs and disbursements.