
    Henry T. Buell, Appellant, v. Frank C. Hollins, Respondent.
    (Supreme Court, Appellate Term,
    April, 1896.)
    1. Appeal — Refusal to vacate order; made on justice’s motion.
    A hearing on an appeal from an order refusing to vacate a prior order will not be refused on the ground that such prior order was made on the justice’s own motion, where there is a respondent in active and continued opposition.
    2. Calendar — Preferences — Short, cause.
    The right tó a preference of a cause as a short cause, after an order has been made placing it on the special calendar, is a substantial one, and an appeal will lie from a subsequent order affecting such right.
    8. Appeal — Discretionary order.
    Where the question involved upon an appeal is merely one of fact, this court cannot determine the same, but can only affirm the order. ■
    Appeal from an order of the General Term of the City Court of New York, which'affirmed an order denying a. motion to vacate an order sending a cause from the special calendar to the foot of the general calendar after the trial had been entered upon.
    
      Edward 0. Perkins, for appellant.
    Henry B. Johnson, for respondent.
   Bischoff, J.

This cause was placed upon the calendar of short

causes for trial in the court below, and, before the completion of. the trial, it was, of the court’s own motion, sent.back to be placed at the foot of. the general calendar, with $30 costs to defendant to abide the event, by an order which recited the fact that the trial had occupied more than one hour. City Court Bule 14.

Thereafter, at the same term, a motion was made before the trial justice to vacate this order, the motion being based upon affidavits, verified respectively, by the ' plaintiff’s attorneys and their clerk, alleging that the trial had proceeded for a period of less than one hour when terminated by the court, and tending to show that it would not have been protracted beyond the limited time. This motion was denied, and from an affirmance by the General Term of the order thereupon entered the appeal'is taken.

Ho counter affidavits were submitted on behalf of the defendant, who, however, opposed the motion and has responded to the appeal, below and to that before us.

This plaintiff, if prejudiced, is not to be denied a hearing in this court upon the authority of Hayes v. Consolidated Gas Co., 143 N. Y. 641, relied upon by the defendant, since in that case the controversy was between the plaintiff and the trial judge as to the right to a preference, the adverse litigant assuming no position with regard to the matter whatsoever, whereas here there is a respondent in active and continued Opposition.

We may grant'that the imposition of costs by the court below did not render this order appealable as affecting a substantial right; since they were imposed conditionally (Bergen v. Carman, 79 N. Y. 146); the event of the action was undetermined (De Barante v. Deyermand, 41 N. Y. 355), and the notice of appeal did not specify this ground (Crosby v. Stephan, 97 N. Y. 606; Code Civ. Pro., §§ 1300, 3192); but it appears that a substantial right was affected by the order since the right to a preference of the cause in the court below, as a short cause, after an order had been made placing it upon the special calendar, was as complete as though the action fell within section 7.91 of the Code (City Court Rule 14; Code, § 323), and the right to a preferencé under .that section is a substantial legal right, enforceable by mandamus in a case where a remedy by appeal may, through circumstances, be unavailing. Hayes v. Con. Gas Co., supra.

So,- too, if the fact be, as contended for, that the trial did not occupy one hour’s time, then the justice’s action was based upon no grounds calling for the exercise of discretion (City Court Rule 14), and the appeal was properly taken from this order rather than from the order first made, since in no other manner could the facts have been presented in behalf of the - plaintiff, assuming his allegations to have been admittedly true.

But while we entertain the appeal we may only affirm the order, since, taking the view most favorable to the appellant, the record presents merely a question of fact without the slightest basis for a determination of the matter as one of law.

' There is no admission by the respondent of the plaintiff’s averments that the trial was discontinued by the justice before one hour had elapsed, and the record of the court shows that the fact was directly to the contrary. Certainly the respondent was not called upon to make oath in support of this recital in the order signed by the trial judge when the particular matter was peculiarly within the knowledge of that officer. Doyle v. R. R. Co., 1 Misc. Rep. 376. Whether'or not the original order truthfully recited the facts was a question to be determined by the cqurt - below, and it assumed, as it might, that the statement made of record by the justice, in the exercise of' his official functions, was correct. This presents no error for us to review.

Thus it must be held that the first order was properly within the power of the court to make, and that the order before us did not proceed upon an unauthorized disregard of the affidavits presented upon the motion. Order affirmed, with costs and disbursements.

Daly, P. J., and McAdam, J., concur.

Order affirmed, with costs and disbursements.  