Gehrt v. Deane

FINELITE, J. This motion for a preference is made upon the ground that this action is one of those specified in subdivision 5 of section 791 of the Code of Civil Procedure. The plaintiff moves upon his complaint alone, and presents no affidavit containing special facts or circumstances why this action should be preferred over other issues. An application of this kind is addressed to the discretion of the court, and in order to exercise that discretion the court should be made cognizant of facts other than what the pleadings show that the case is one which might be preferred under section 791 of the Code of Civil Procedure. The complaint shows that about July 26, 1905, William Schmidt, now deceased, of the age of 7% years, then residing with his mother at No. 168 West 107th street, was accustomed to play at the bottom of a well or air shaft between the buildings Nos. 166 and 168 West 107th street, and while so there the defendant, by her agents and servants, caused certain material to fall where the said infant, William Schmidt, was, and upon him, so that by reason of said material failing upon him he was injured, from which injuries he died on or about July 27, 1905. The mere fact that the infant was of tender years and met his death as aforesaid does not entitle the plaintiff to a preference. For aught I know the estate of the infant may be a very wealthy one and in no immediate need of the judgment prayed for. It seems to me there is no great necessity shown to warrant the exercise of the court’s discretion in this case. The calendar of this court is crowded now, and for that reason additional justices were added in order to speedily decrease the great number of cases on said calendar and at issue long before this case was, and if this case should be preferred it would be an injustice to the many other litigants whose rights are at issue preceding this. However, the Appellate Division, First Department, has laid down the rule that it is not sufficient upon the pleadings alone, showing that this was a case which from the nature of the action might be preferred, to move for a preference, but other facts should have been presented to enable the court to exercise its discretion. Carroll v. Penn. Steel Co., 96 App. Div. 165, 89 N. Y. Supp. 199. This rule has been adopted in Eising v. Young, 38 Misc. Rep. 12, 76 N. Y. Supp. 698, and Davis v. Westervelt, 38 Misc. Rep. 13, 76 N. Y. Supp. 695. Also see Gegan v. Union Trust Co., 120 App. Div. 382, 105 N. Y. Supp. 243; Morse v. Press Publishing Co., 71 App. Div. 351, 75 N. Y. Supp. 976; Martin’s Bank v. Amazonas Co., 98 App. Div. 146, 90 N. Y. Supp. 734. Motion denied.