Majority
p. 636(121 App. Div. 257) HICKMAN v. WILLIAM SCHIMPER & CO. (Supreme Court, Appellate Division, Second Department. July 23, 1907.) Argued before HIRSCHBERG, F. J., and HOOKER, GAYNOR, RICH, and MILLER, JJ.
Headnote
Appeal-Review—Setting Case por Trial on Certain Day—Discretion- of Coltrt.Where a calendar judge grants a motion preferring a cause and setting it down for trial on a day certain on account of the extreme age of the plaintiff, the Appellate Division will not interfere.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3834.]
Appeal from Trial Term, Kings County.
Action by Charles H. Hickman against William Schimper & Co. From an order of the calendar judge at a Trial Term granting a motion to prefer the cause and setting the case for trial on a day certain, defendant appeals.
Affirmed.
Louis Cohn, for appellant.
James C. Cropsey, for 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 iq 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
p. 637
section of the Code relative to preferences must be availed of bjT a party wanting a preference as of right; but that is not this case.
The order should be affirmed.
Order affirmed, with $10 costs and disbursements. All concur.