Opinion
July, 1905.
Clarence J. Shearn [ Edward A. Freshman with him on the brief], for the appellant.
Henry A. Powell, for the respondent.
This appeal is by the defendant in an action for libel, from an order of the Trial Term granting a motion for a preference and designating the first Monday in May, 1905, for trial. The amendment of section 793 of the Code of Civil Procedure, by chapter 173 of the Laws of 1904, that if it should appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the application is made the court or justice must designate a day certain during the term, on which day the said cause shall then be heard, was declared unconstitutional by the decision of this court in the first department in Riglander v. Star Company ( 98 App. Div. 101; affd., 181 N.Y. 531). The order must, therefore, be modified by striking therefrom that part which designates the first Monday in May, 1905, for trial, and as modified affirmed, without costs of this appeal to either party. The preference of this cause should only prevail as to other causes noticed for the same term, and not as to all causes then upon the calendar of the court. ( Schuman v. Brooklyn Heights R.R. Co., 32 Civ. Proc. Rep 25; 71 N.Y. Supp. 1095; affd., 64 App. Div. 620.)
BARTLETT, RICH and MILLER, JJ., concurred; WOODWARD, J., dissented.
Order modified by striking therefrom that part which designates the first Monday in May, 1905, as the time for the trial, and as modified affirmed, without costs of this appeal to either party.