Opinion
June 9, 1970
Order entered February 6, 1970 unanimously reversed on the facts and the law, with $30 costs and disbursements to the appellant, and preference denied. Appeal from order entered March 2, 1970 dismissed as academic without costs and without disbursements. A trial preference was granted to plaintiff following a pretrial hearing on the ground that defendant failed to seek in good faith to adjust the case. We have repeatedly held that a preference can be granted only on a record made at the hearing which demonstrates the defendant's intransigence ( Wolff v. Laverne, Inc., 17 A.D.2d 213). The recitals in the order do not constitute such a record. Moreover, even these do not indicate a failure to co-operate.
Concur — Eager, J.P., Markewich, McNally and Steuer, JJ.