
    Thomas Malus, Respondent, v. Harry Alter, Appellant, and Joseph Leyrer and John Weiss, Defendants.
    Supreme Court, Appellate Term, First Department,
    November 7, 1929.
    
      Herschaft & Lamkay [Max Herschaft and Samuel I. Poszanz of counsel], for the appellant.
    
      Alfred E. Herz [I. Sidney Worthman of counsel], for the respondent.
   Per Curiam.

Two actions based on a single torb were brought, one in the Municipal Court for loss of services and the present in the City Court for personal injuries. The first having been tried, a preference has been granted in this case on the sole ground that some of the issues have already been adjudicated in the Municipal Court and the trial of the present action will take less than one hour. The application for a preference stated that it was based upon rule 3 of the Rules of the City Court of the City of New York and sections 138 and 141 of the Civil Practice Act. There is no specific provision in either the rule or the sections cited to justify such a preference, nor do we feel that it can properly be upheld as an exercise of the discretionary power of a court to control its own calendars. The exercise of such discretion must be based on facts justifying departure from the usual rule that causes be tried in their regular order. To permit preference on the ground urged herein would disorganize calendars and impose hardships on litigants whose actions were awaiting trial.

Respondent’s contention that the order herein is not appealable is without foundation. (See Waters, Inc., v. Hatters’ Fur Exchange, 185 App. Div. 803.)

Order reversed and motion denied.

Present, Bijur, Lydon and Callahan, JJ.; Bijhr, J., dissents.  