Opinion
July, 1904.
Henry Bogert Clark, for the appellant.
Hiram O. Hance, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, McLAUGHLIN and HATCH, JJ.
This motion for a preference was made upon the ground that the action is one of those specified in subdivision 5 of section 791 of the Code of Civil Procedure.
The motion was made upon the pleadings, and no affidavit was presented to the court showing any facts or special reason why the action should be preferred over other issues. An application for a preference is one addressed to the discretion of the court, and, to the end that it should be exercised favorably or unfavorably to the applicant, some facts should be presented to the court other than that the case is one which might be preferred under section 791 of the Code of Civil Procedure. This rule has been adopted in Eising v. Young ( 38 Misc. Rep. 12) and Davis v. Westervelt (Id. 13), in which cases the decision of this court in Morse v. Press Publishing Co. ( 71 App. Div. 351) was followed.
It was not sufficient, therefore, upon the pleadings alone showing that this was a case which, from the nature of the action, might be preferred, to move for a preference, but other facts should have been presented to enable the court to exercise its discretion. For the reason that the motion papers were insufficient, the motion should have been denied. It follows, accordingly, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied.
Order reversed, with ten dollars costs and disbursements, and motion denied.