Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

might have received the deed from some other person than the deceased, and also because she did not state from whom she received it, while in this case the absence of such proof is laid hold of by the learned referee as tending to support an inference that the delivery to Miss Emmett was not surreptitious and that there was not a delivery to her of the certificates of stock by any other person than Richardson.

There can be little doubt, I take it, assuming, as we must, the evidence to be in the case for all purposes, that the deductions drawn from it by the referee are such as would be drawn by any reasonable man performing the duty of a trier of fact. The learned judge writing for the Appellate Division said, that while probably the possession of these certificates of stock was "competent evidence at the time it was introduced," it "was not evidence from which an inference could be drawn that the testator had delivered the stock to her" (citing section 829 of the Code; Clift v. Moses, supra and Matter of Humfreville, 6 App. Div. 536).

The court was quite right in its view that section 829 of the Code was intended to prohibit a party covered by that section from testifying to a fact from which the inference must necessarily be drawn of a personal transaction between a testator and the witness, and the authorities cited by that court fully sustain such a position; but the flaw in the argument is in assuming that the evidence was competent at the time it was introduced-a flaw due, it is quite evident, to the assumption that the Simmons case requires the court to hold the evidence admissable while the other authorities and the Code burdened it with the necessity of depriving it of all probative force. It was clearly incompetent if it tended to support an inference of a delivery of the stock to Miss Emmett by Richardson, as the referee found it did, and as we think; indeed, it was not material or useful for any other purpose. Now, while testimony almost identical with this was said not to justify a reversal in the Simmons case (supra), we think, for the reasons already assigned, that the decision

Mary K. Morse v. Press Publishing Co.

in that case should be confined to situations precisely like the one then before the court. Such, we think, the opinion shows to have been the intention of the court in that case, and such intention is further evidenced by a decision of the court made two or three years later in Clift v. Moses (supra), in which the opinion in the Simmons case was not discussed.

It is perhaps unfortunate that this case must be reversed, but it is better far that it should be than that such a precedent should be created as would result from an affirmance of the judgment.

The judgment should be reversed and a new trial granted, with costs to abide the event.

GRAY, VANN, MARTIN, CULLEN, and WERNER, JJ., concur; O'BRIEN, J., absent.

Judgment reversed.

MARY K. MORSE, RESPONDENT, v. PRESS PUBLISHING COMPANY, APPELLANT.

SUPREME COURT-APPELLATE DIVISION-FIRST DEPARTMENT-APRIL, 1902.

§§ 791, 793, 256, 977, 789, 790.

Preferences-Civil Actions-Section 791, Code Civil Procedure.

In the County of New York, civil causes specified in section 791 of the Code of Civil Procedure are not entitled, as a matter of right, to be advanced over causes noticed for trial for prior terms. The right to grant a preference over issues noticed for Trial Terms rests in the discretion of the court; but some other fact

Mary K. Morse v. Press Publishing Co.

than that the action is one specified in section 791 of the Code must be shown to justify the court in preferring the action over such issues.

An order granting a preference in an action for libel over issues noticed for prior terms affirmed on the ground that the appellate court would not interfere with the discretion that has been exercised by the court below.

(Decided April, 1902.)

Appeal from an order granting a preference and setting the case down for the Call Calendar of February 14, 1902, in pursuance of rules 3 and 7 of the Rules of Trial Term.

James W. Gerard, for appellant.

John C. Rowe, for respondent.

INGRAHAM, J.-There is presented on this appeal the question as to whether the plaintiff in an action specified in section 791 of the Code of Civil Procedure is entitled as a matter of right to have his case advanced over cases noticed for trial for prior terms. In view of the large increase of the cases specified in this section of the Code the condition of the calendar has become such that a large part of each term of the trial courts is consumed in the disposition of the cases which are thus placed ahead of the other actions on the calendar, and slight progress is made in the call of non-preferred cases. It has undoubtedly been the unquestioned practice in this district to construe this section of the Code as giving to the parties to an action specified in section 791 the right to have the case advanced over cases previously upon the calendar; but this practice seems to have grown up without question, the number of actions within those specified in this section having been so limited that no substantial injustice was done. The right to have a case thus preferred is now questioned and we must determine that question by construing the provisions of the Code. Under the Code of Procedure as originally adopted it was contemplated that there would be a

Mary K. Morse v. Press Publishing Co.

new calendar made up for each term of the court, and if any of the cases on the calendar were undisposed of at the end of the term they were to be renoticed for the ensuing term and a new note of issue filed (Code of Pro., sec. 256). There was no provision in the Code of Procedure providing for the preference of any particular case, but certain actions were by special statutes given a preference such as issues of law, actions by the attorney-general in behalf of the People, certiorari proceedings and actions against corporations on notes or other evidences of debt for the absolute payment of money on demand. As business in the County of New York increased and it was found to be impossible to dispose of all the cases on the calendar by the end of each term, an amendment to section 256 of the Code of Procedure was adopted. There was added to that section a provision that in the First Judicial District there need be but one notice of trial and but one note of issue, and that the case should then remain on the calendar until disposed of without further notice; and that provision was continued in force in the Code of Civil Procedure as part of section 977 of that Code. That section provides for noticing a case for trial and that: "The party serving the notice must file with the clerk a note of issue, stating the title of the action, the names of the attorneys, the time when the last pleading was served, the nature of the issue, whether of fact or of law, and, if an issue of fact, whether it is triable by a jury or by the court without a jury. * * * The clerk must thereupon enter the cause upon the calendar, according to the date of the issue. * In the City and County of New York where a party has served a notice of trial, and filed a note of issue for a term at which the cause is not tried, it is not necessary for him to serve a new notice of trial or file a new note of issue for a succeeding term; and the action must remain on the calendar until it is disposed of."

*

There was also included in the Code of Civil Procedure an article relating to preferred and deferred causes. By

Mary K. Morse v. Press Publishing Co.

section 789 it was provided that certain actions brought by the People are entitled, on the application of the attorneygeneral, to a preference over any other business at a term. or sitting of any court of the State, irrespective of their places on the calendar. By section 790 this same provision is applied to criminal cases. There can be no question of the intention of the Legislature as to these two classes of cases. They were to be given a preference irrespective of the place they occupied upon the calendar, and could thus be moved out of their order at any time. By section 791 it is provided that civil cases are entitled to preference among themselves in the trying and hearing thereof in the following order. Then follow twelve subdivisions specifying certain actions that would seem to have been given certain preference, but on different conditions. Subdivision 1 applies to actions or special proceedings brought by or against the People of the State or against a State officer; in such an action or proceeding the attorney-general can give notice at the time of the service of the notice of trial or argument of a particular day in the term on which he will move it. If on that day the cause is not moved by the attorney for the State the other party may then move the trial or argument; otherwise it shall not be moved out of its order at that term except by the special order of the court. The same provision is extended by subdivision 2 to an action or special proceeding in which the City of New York or certain municipal officers are parties. Subdivisions 3 and 3a apply to appeals, and subdivision 4 applies to the Court of Appeals. Subdivisions 5, 6, 7, 8, 9, 10 and 11 provide that several special classes of action shall have a preference over other actions in the hearing and trial thereof.

In the Code of Civil Procedure as originally passed no method was prescribed by which a case should be given the preference provided for by section 791 of the Code. Section 793 of the Code provided that in the cases where the facts which constituted a right to a preference did not appear