Smith v. Horn Construction Co.

Appellate Division of the Supreme Court of New York

Smith v. Horn Construction Co.

12 A.D.2d 739, 208 N.Y.S.2d 1003, 1961 N.Y. App. Div. LEXIS 13390

Appellate Division of the Supreme Court of the State of New York·Decided January 10, 1961·Published·Cited by 2 cases

Opinion

Order, entered on October 20, 1960, granting plaintiff a trial preference pursuant to rule 151 of the Rules of Civil Practice, unanimously reversed upon the law and upon the facts, with $20 costs and disbursements to the appellant, and the motion denied without prejudice to renewal of motion upon proper proofs. The plaintiff on this motion has failed to submit proper medical proof showing his present physical condition or inability to work, has failed to submit complete factual detail showing destitution or indigence, and has failed in general to present unequivocal proof of the special circumstances required to warrant the granting of a preference under said rule 151. (See Dodumoff v. Lyons, 4 A D 2d 626; Goldin v. Malone Dairy Co., 209 App. Div. 341, 342; Bitterman v. 2007 Davidson Ave., 278 App. Div. 759; Sheehan v. Behr, 1 AD 2d 1037; Brown v. Upfold, 204 Misc. 416, 419.) Concur — Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.

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Order, entered on October 20, 1960, granting plaintiff a trial preference pursuant to rule 151 of the Rules of Civil Practice, unanimously reversed upon the law and upon the facts, with $20 costs and disbursements to the appellant, and the motion denied without prejudice to renewal of motion upon proper proofs. The plaintiff on this motion has failed to submit proper medical proof showing his present physical condition or inability to work, has failed to submit complete factual detail showing destitution or indigence, and has failed in general to present unequivocal proof of the special circumstances required to warrant the granting of a preference under said rule 151. (See Dodumoff v. Lyons, 4 A D 2d 626; Goldin v. Malone Dairy Co., 209 App. Div. 341, 342; Bitterman v. 2007 Davidson Ave., 278 App. Div. 759; Sheehan v. Behr, 1 AD 2d 1037; Brown v. Upfold, 204 Misc. 416, 419.) Concur — Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.

Smith v. Horn Construction Co., 12 A.D.2d 739, 208 N.Y.S.2d 1003, 1961 N.Y. App. Div. LEXIS 13390 (N.Y. Ct. App. 1961).

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