Jacobs v. Feigenbaum

143 Misc. 128, 255 N.Y.S. 339, 1930 N.Y. Misc. LEXIS 1817

• Court: City of New York Municipal Court
• Decided: October 8, 1930
• Status: Published

Opinion

La Fetra, Ch. J.

This is a motion by the guardian ad litem of an infant, the sole plaintiff, for a preference for trial. She asks for said preference pursuant to section 138, subdivision 7, and section 141, subdivision 3, of the Civil Practice Act. Prior to the passage of chapter 173 of the Laws of 1904, this preference was granted in New York county, among other counties, in the sound discretion of the court, pursuant to the provisions of the act, which read in part as follows: “ * * * If it shall 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 may direct that it shall be so heard.” {Morse v. Press Publishing Company, 71 App. Div. 351; Laws of 1900, chap. 172.) By virtue of said chapter 173 of the Laws of 1904 it has become mandatory upon the court in such instances to designate a day certain during a term for the trial of such a cause. Section 141, subdivision 3, of the Civil Practice Act reads in part as follows: “* * * And if it shall 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 that term, on which day the said cause shall then be heard; if there be two or more causes so designated for trial for the same day, the said causes shall be heard in the order of their date of issue.”

Motion for a preference granted, and cause set down for trial upon the general calendar for the 24th day of October, 1930. Order signed.