Di Carpio v. Babylon Milk & Cream Co.

285 A.D. 1084, 140 N.Y.S.2d 43, 1955 N.Y. App. Div. LEXIS 6730

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 1955
• Status: Published

Opinion

In an action to recover damages for injuries to person and property, order granting plaintiffs’ motion for a preference in the trial of the action reversed, without costs, and motion denied, without costs. There was no sufficient showing warranting the exercise of discretion in favor of granting the preference. (Farewell v. Milbank, 284 App. Div. 898, and eases there cited.) Nolan, P.J., Wenzel, MacCrate and Ughetta, JJ., concur; Beldock, J., dissents and votes to affirm the order with the following memorandum: There is a sufficient showing of destitution to warrant leaving undisturbed the discretion exercised by the Special Term. Plaintiffs have three children. Although plaintiff husband is only thirty years old, he is no longer able to work by reason of this accident. Plaintiff’s only income is $37 a week, the wife’s take-home pay. Plaintiffs’ sole assets are the cash surrender values of life insurance policies, totaling about $459. Plaintiffs are heavily in debt (over $3,000). [See post, p. 1158.]