Opinion
May 20, 1963
In an action to recover damages for personal injury, defendant Econ-O-Wash of New Jersey, Inc., appeals from an order of the Supreme Court, Kings County, dated January 2, 1963, which after a pretrial hearing granted plaintiffs a preference in trial and directed that the action be placed on the Ready Day Calendar for a date certain. Order reversed, without costs, and preference vacated, without prejudice to a future application for a preference, if plaintiffs be so advised. In addition to the usual grounds for the granting of a preference, namely, indigence or likelihood of death, a preference pursuant to rule 151 of the Rules of Civil Practice and rule 8 of the Rules of the Supreme Court, Kings County, may also be granted in the interests of justice upon a finding that at a pretrial hearing the defendant acted arbitrarily and not in good faith. However, a stenographic transcript of the minutes of the hearing or other appropriate evidence showing the facts upon which the court based such finding must be contained in the record in order to justify the grant of a preference ( Abramson v. Kenwood Labs., 17 A.D.2d 626). The instant record is devoid of such evidence; hence, the preference must be vacated without prejudice. Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.