Morse v. Press Publishing Co.

71 A.D. 351, 75 N.Y.S. 976

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1902
• Status: Published

Opinions

Ingraham, J.:

There is presented on this appeal the question as to whether the. plaintiff, in an action specified in section 791 of the Code of Civil' Procedure, is entitled as a matter of right to have his case advanced over cases noticed for trial for prior terms. In view of the large increase of the cases specified in this section of the Code, the condition of the calendar has become such that a- large part of each term of the trial courts is consumed in'the disposition of the cases which are thus placed ahead of the other actions On the calendar and slight progress is made in the call of non-preferred cases. It has undoubtedly been the unquestioned practice in this district to construe this section of the Code as giving to the parties to an action specified in section 791 the right to have the case advanced over cases previously upon the calendar ; but this practice seems to have grown up without question, the number of actions within those ^specified in this section having been so limited that no substantial' injustice was done. The right to have a case thus 'preferred is now questioned, and we must determine that question by construing the provisions of the Code. Under the Code of Procedure, as originally adopted (Laws of 1848, chap. 379), it was contemplated that there would be a new calendar made up for each term of the court, and if any of the cases on the calendar were undisposed of at the end of the term, they were to be renoticed for the ensuing term and a new note of issue filed. (Code Proc. § 256 [211].) There was no provision in the Code of Procedure providing for the preference of any particular case, but certain actions were by special statutes given a preference — such as issues of law ; actions by the Attorney-General in behalf of the People.; certiorari proceedings, and actions against corporations on notes or other evidences of debt for the absolute payment of money on demand. As business in the county of New York increased and it was found to be impossible to dispose of all the cases on the calendar by the end of each term an amendment to section 256 of the Code of Procedure was adopted (Laws of 1860, chap. 459, § 8). There was added to that section a provision that in the first ■ judicial district there need be but one notice of trial and but one note of issue, and that the case should, then remain on the calendar until disposed of without further notice, and that provision was continued in force in the Code of Civil Procedure as part of section 977 of that Code. That section provides for noticing a case for trial and that “ The party serving the notice must file with the clerk a note of issue stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law, and if an issue of fact, whether it is triable by a jury or by the court without a jury. * * * The clerk must thereupon enter the cause upon the calendar according to the date of the issue. * * * In the counties of New York * * * where a party lias served a notice of trial and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term, and the action must remain on the calendar until it is disposed of.”

There was also included in the Code of Civil Procedure an article relating to preferred and deferred causes. By section 789 it is provided that certain actions brought by the People are entitled, on the application of the Attorney-General, to a preference over any other business at a term or sitting of any court of the State, irrespective of their place on the calendar. By section 790 this same provision is applied to criminal cases. There can be no question of the intention of the Legislature as to these two classes of cases. They were to be given a preference irrespective of the place they occupied upon the calendar, and could thus be moved out of their order at any time. By section 791 it is provided that civil cases are entitled to preference among themselves in the trying and- hearing thereof in the following order. Then follow twelve subdivisions specifying certain actions that would seem to have been given certain preference, but on different conditions. Subdivision 1 applies to actions or special proceedings brought by or against the People of the State or by or against a State officer or board of State, officers as such; in such an action or proceeding the attorney for said People, officer or board must give notice at the time of the service of the notice of trial or argument of a particular day in the term at which lie will move it. If on that day the cause is not moved by the said attorney, the other party may then move-the trial or argument; otherwise it shall not be moved out of its order at that term, except by the special order of the court. The same provision is extended by subdivision 2 to an action or special proceeding in which the city of New York or certain municipal officers are parties. Subdivisions 3 and 3a apply to appeals ; subdivisions 4 and 12 apply to the Court of Appeals, and subdivisions 5, 6, 7, 8, 9, 10 and 11 provide that several special classes of action shall have a preference over other actions in the hearing and- trial thereof.,

In the Code of Civil Procedure as originally passed (Laws of 1876, chap. 448), no method .was prescribed by which a case should be given the preference provided for by section 791 of the Code. Section 793 of the Code provided that in the cases where the facts which constituted a right to a preference did- not appear upon the pleadings, or other papers upon which the cause was to be tried, the party desiring the preference “ must procure an order therefor from the court- or a judge thereof upon notice to ■ the adverse party.” That section was -amended by chapter 497 of the Laws of 1888 so as to provide that “ No "action or- special proceeding shall- be placed as'a preferred cause upon, the calendar of any circuit' court or -trial term or. spécial term of any court, but the party desiring a. preference of any cause shall serve upon the opposite 'party, with his notice of trial, a notice that an application will be made to the court, at the opening thereof, for leave to move the same as a preferred cause. * * * The application for a preference shall be made at the opening of the court, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at the term at which the application is made, the court may direct that it shall be so heard.” This provision applied to the whole State and made an application to the court necessary before any case- could be preferred. This section was further amended by chapter 410 of the Laws of 1895, as follows : “ Where no order is required a claim for preference, specifying the provision of law under which the claim is made, may be inserted in the note of issue to be filed with the clerk, and it shall then be the duty of such clerk to place such cause in its proper place among the preferred causes at the head of the calendar; except that in the counties of New York and Kings and the seventh judicial district, no action or special proceeding shall be placed as a preferred cause- upon the calendar of any circuit court or trial term or special term of any court as herein provided, but the party desiring a preference of any cause shall serve upon the opposite party, with his notice of trial, a notice that an application will be made to the court at the opening thereof, for leave to move the same as a preferred cause. * * * In said counties of New York and Kings and in the seventh judicial district, the application for a preference shall be made at the opening of the court, and if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at the term at which the application is made, the court may direct that it shall be so heard.” This section has been since amended by chapter 140 of the Laws of 1896 and chapter 172 of the Laws of 1900, but the provision, so far as it affects this County, has not been changed. We have in this provision of the statute a distinction between two classes of actions in which it was intended to provide for a preference. In one class of actions in which the State, or certain municipal corporations are parties, provision is made for moving a cause for trial upon any particular day in a term, irrespective of the position of the cause upon the calendar. Certain other classes of cases are given a preference upon the calendar in all counties of the State, except New York, Kings, Queens and Erie and the seventh judicial district. The claim for a preference must be inserted in a note of issue to be filed with the clerk, and it is then the duty of the clerk to place such cause as a preferred case on the calendar. This provision is mandatory. The clerk has plainly no discretion. From this provision, however, the counties of New York, Kings, Queens and Erie, and the seventh judicial district, are expressly excepted, for in these counties no action or special proceeding is to be placed as a preferred • cause upon the calendar. The mandatory provision which applies to the other portions of the State is not made applicable to these counties. In these counties, instead of a mandatory provision by which the clerk is required. to place the cause upon the preferred calendar, provision is made for an application to the court or a justice by a party claiming a preference, for leave to move the same as a preferred cause, 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 may direct that it shall be so heard.” It seems to me that there is a distinction made between these two classes depending upon the locality in which the action is brought. In one case the party claims his preference in his note of issue filed with the clerk and the clerk is then required to place that action among the preferred causes for the term of court at which the case has been noticed for trial. No application to the court is necessary ; no discretion as to the ' granting of the preference is given, and it would appear that this provision applies to the counties of the State when a new calendar is made up for' each term. As to the other counties, however, an entirely different system is provided. There the case is to go upon the calendar in its regular order. If either party to an action desires the cause to be taken out of its regular order and tried, he is required to make an application to the court for leave to move the same as a preferred cause in the manner and at the time prescribed by the Code. If it was intended that this provision should- be mandatory, and that the mere fact that the action was one of the classes embraced within subdivisions 5 to 11, inclusive, of section 791 entitled it to be tried .before all other causes on the calendar, it is not apparent why an application to the court was necessary, as that question could have been determined by the clerk as in the other counties of the State. In these counties, however, an application must be made to the court for its judicial action.' The court is then authorized to act upon that application. 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 ma/y direct that it shall be so heard. From this language we think that it was intended to give to the court a discretion as to whether or not the action in which the application is made should or should not be heard at that term of the court. The contrast between the mandatory provision in relation to the other counties of the State and the counties embraced within the provision which we are now considering is very marked. In one case it is made the duty of the clerk to place the cause upon the preferred calendar; its place is determined by the specific provision of the section; in the other, the court is given authority to take the case out of its order on the general calendar and dispose of it at a particular term of the court. There is no direction that the cause shall be taken out of its order and placed at the head of the calendar, but the court in such a case has authority to order it tried at the particular term at which the application is made. Whether or not it shall be or can be tried at such a term must necessarily depend upon the state of the business at that term and the judicial force then available for the trial of cases, the number of cases which has been especially set down for trial at the term and the many other contingencies that arise affecting the transaction of business at a term of a court. In one case it is made the duty of the clerk to place the case on the calendar among the preferred causes; in the other case, authority is given to the court to try the case, although not reached in its regular order; but there is nothing in this provision that made it the duty of the court to set aside all of its other business and to proceed with the trial of a particular case because one of the parties has applied to the court that it should be so tried. The inherent power of a court to control its own calendar and to determine the order in which its business shall be performed would be a reason why the Legislature should give the court discretion as to when a case, though entitled to a preference as to a term for which the case was noticed, should be taken out of its order on the calendar and disposed of; and the words used, when providing for the disposition of an application to have the case taken out of its order and tried at a particular term, justify the presumption that such was the intention.. It.is not made the duty of the court to try the case at the time at which the application is made, but it is provided that the court “ may ” direct the action to be heard at such term. The condition of the calendar in New York at the present time shows how essential it is that in the disposition of the public business there should be a. discretion as to whether or not any particular action should be taken out of its order and advanced ahead of the. untried cases. The practice has been to grant such applications in actions specified in section 791 of the Code as a matter of course, and the consequence is that more than one-half of the time of the court each term is taken up in the trial of cases thus advanced, in many of which it is impossible to see that either the public interests or the interests of the particular litigants are such that they should be tried before other causes of the same general character upon the regular calen- . dar. Take the case of a person who sues to recover for a personal injury, if the plaintiff is an infant he is entitled to a preference under section 791 of the Code. If an adult, no such remedy can be awarded. Where the injury results in death, his administrator suing for the benefit of the next of kin is entitled to a preference. If, he is maimed for life so as to be perfectly helpless, his case must take its turn upon the general calendar, and other causes might be instanced which would present the same result. Where a new calendar is, made up for each term and is disposed of, no particular injustice is occasioned by putting cases specified in section 791 upon a preferred calendar. Where, however, it takes many months to reach a case upon the general calendar, it is apparent that it is a great, injustice to the general class of. litigants to postpone the trial of their actions until all of the actions specified in section 79.1 of the Code are disposed of. A reason is, therefore, apparent why there should be a distinction between the several counties of. the State, depending, upon the amount and nature of the business to, be transacted and the condition of the calendar, and why, as to the-counties in which there is a.serious arrear in the trial of cases, the Legislature should leave it to the discretion of the court to be determined upon the character of the particular case moved and the condition of the public business ready to be transacted at a particular term as to whether any particular case should or should not he taken out of its order and tried. The question whether the word “ may ” is to he construed as mandatory or discretionary has been much discussed, but the general rule is that the ordinary meaning of the woi'd is that there is involved a discretion and it is to be construed in a mandatory sense only where such construction is necessary to give effect to the clear policy and intention of the Legislature ; that where there is nothing in the connection or the language, or in the sense or policy of the provision to require an unusual interpretation, it will be given its ordinary meaning (20 Am. & Eng. Ency. of Law [2d ed.], 237); and that where, by the use in other provisions of the statute of mandatory words, it appears that the Legislature intended to distinguish between these words and “ may,” “ may ” will not be construed as imperative (Id. 238). In the case of People ex rel. Comstock v. City of Syracuse (59 Hun, 258; affd., 128 N. Y. 632) Judge Martin states the general rule that “ ‘ such exposition ought to be adopted as shall carry into effect the true intent and object of the enactment. The ordinary meaning of the word, which is permissive, ought to be adopted, and must be presumed to be intended unless it would manifestly defeat the object of the provision; ’ ” and after a full review of the authorities he says: “ The decisions holding that permissive words should sometimes be construed as mandatory have been based upon the supposed intent of the Legislature. While many general expressions have been used which, when taken alone, might seem to indicate that the word may, or words of similar import, should be construed as mandatory when the public interest or the rights of individuals are involved, independent of any question of legislative intent, still, when the cases are examined, it will be seen that such construction has prevailed only in. cases where the statute under consideration, when taken as a whole and viewed in the light of surrounding circumstances, indicated a purpose on the part of the Legislature to enact a law mandatory in its character.” In Cain v. City of Syracuse (95 N. Y. 83) Judge Finch said: “We must consider the nature and scope of the duty, and in so doing must not be misled by the test which makes permissive words absolute- and a command. That test is applicable only to solve a doubt, and determine between a ministerial and judicial duty when such duty may possibly belong to either class, but will not serve to make a duty which is inherently and inevitably discretionary, nevertheless ministerial because the public have an interest in its exercise or the rights of individuals may be affected by it.”

We have here in this case the reference of a question to a court which necessarily involves judicial action. The question to be determined is as to whether a particular case should be advanced over other cases upon the calendar and tried at a particular time. The rights of the litigants, other than those of what have been called the preferred class, are at issue as well as the rights of the parties to the action in which the application is made. Under this section the court is bound, upon such an application, to determine that judicial question; but. when the Legislature says upon such an application it may grant a preference, it would seem that it was intended that the court to which the application is made should exercise its judicial discretion in determining whether the application should be granted. Assuming it to have been discretionary with ■the court below, should we on this appeal reverse the exercise of that discretion ? This action was for libel and within subdivision 11 of section 791 of the Code. The plaintiff moved for a preference upon an affidavit alleging the nature of the action. In opposition to this motion an affidavit was presented, showing that this action was first noticed 'for trial at the November nineteenth term; that upon the general calendar the last case called was No.' 3,374, which was noticed for trial for the June term, 1899; that the months of June and October, 1901, had been occupied exclusively with preferred causes or old causes which had been previously called; that the number of the last case noticed for October, 1901, was 12,299. No special reason was given why this case should be preferred over those cases noticed for June and October, 1899, except the fact that it-is an action brought to recover damages for a.libel. In October, 1901, the cases noticed for June, 1899, had not had an opportunity for trial, and it was asked that this action, first noticed for November, 1901, should be preferred over all of the other cases upon the calendar waiting for trial, upon the sole ground that the action is brought to recover damages sustained by the plaintiff in consequence of .a libelous publication in a newspaper. The learned trial judge who granted this application undoubtedly relied upon the general course of practice to which attention has been called; but we have discussed this question at length, as it will settle a calendar practice in this department upon which, undoubtedly, the ordinary practice has been opposed to the views that we have here adopted.

There is nothing in the case of Hayes v. Consolidated Gas Company (143 N. Y. 641) which affects this question. It was there determined that a refusal of the court to grant a preference, to which the plaintiff claimed she was entitled under section 791 of the Code, where such claim was not opposed by the defendant, was not appealable to the Court of Appeals; that where a trial judge refused to try her case when she claimed she was entitled to have it tried, her remedy was not by appeal, but by mandamus to compel him to do his duty. The construction to be given to these sections of the Code was not before the court or discussed in the opinion.

In the case at bar, however, the court below having exercised its discretion, we do not care to interfere with it, and the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred.