Opinion
January 10, 1938.
In an action to recover for death by alleged wrongful act, order, so far as it denies plaintiff's motion for a trial preference on the ground of destitution, reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs. The facts establishing plaintiff's destitution are not challenged. At the time the application for a preference was made, she and her four children were on home relief. If she were to apply for a widow's pension, it would have to be on the ground she was destitute, and the fact that she might do so would not change her status from that of a public charge. Sound legal discretion under the circumstances, which disclose plaintiff to be a public charge, required the granting of this motion under settled authorities. ( Hardison v. Byrd, 252 App. Div. 758 [2d Dept.], decided Oct. 8, 1937, and cases therein cited.) Hagarty, Carswell, Davis, Adel and Close, JJ., concur.