
    WOERNER v. STAR CO.
    (Supreme Court, Appellate Division, Second Department.
    July 27, 1905.)
    Trial of Actions—Preference on Calendar.
    The preference of an action for libel should prevail only as to other causes noticed for the same term, and not as to all causes then on the court calendar.
    Woodward, J., dissenting.
    Appeal from Special Term, Kings County.
    Action by Aloiz Woerner against the Star Company. From an order granting a motion for a preference", defendant appeals. Modified, and, as modified, affirmed. .
    Argued before BARTLETT, WOODWARD, JENKS, RICH", and MILLER, JJ. .
    Clarence J. Shearn (Edward A. Freshman, on the brief), for appellant.
    Henry A. Powell, for respondent.
   JENKS, J.

This appeal is by the defendant in an action for libel, from an order of the Special 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, p. 311, of the Laws of 1904, that, if it should appear that the cause is entitled to preference, and is intended to be moved for trial at or for the term for which the application was made, the court or justice must designate a day certain during the term on which day the said cause shall be heard, was declared unconstitutional by the decision of this court in the First Department in Riglander v. Star Company, 98 App. Div. 101, 90 N. Y. Supp. 772, affirmed by the Court of Appeals April 11,1905, 73 N. E. 1131.

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., 64 App. Div. 620, 72 N. Y. Supp. 1127. All concur, except WOODWARD, J., who dissents.  