Meyers v. City of New York

7 A.D.2d 903, 182 N.Y.S.2d 373, 1959 N.Y. App. Div. LEXIS 9893

Opinion

Order unanimously affirmed, with $20 costs and disbursements to the respondent. Under the circumstances of this case, Special Term appropriately exercised its discretion in denying this motion for a preference under rule 151 of the Rules of Civil Practice. The plaintiff delayed making this application for a preference under rule 151 for approximately nine months after issue was joined. The papers do not include an affidavit by the plaintiff and no showing of a meritorious cause of action is made. As we have heretofore stated, the plaintiff has the burden of establishing the right to a preference under the rule, and the application may not be lightly granted (see Dodumoff v. Lyons, 4 A D 2d 626). Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.