
    Empire City Racing Association, Appellant, v. National Fair and Exposition Association, Inc., and Others, Respondents.
    Second Department,
    April 16, 1915.
    Appeal — order denying preference.
    No appeal lies from an order of the Special Term denying a motion for preference in an action of ejectment where such right depended upon facts which did not appear in the pleading's or other papers upon which the cause was to be tried. Although the statute provides that “such order is not appealable,” an order denying such motion is also not appealable.
    Btjrr, J., dissented, with opinion.
    Appeal by the plaintiff, Empire City Racing Association, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of February, 1915.
    
      Thomas F. Curran, for the appellant.
    
      Leo Oppenheimer, for the respondents.
   Jenks, P. J.:

The plaintiff appeals from an order of the Special Term that denies a motion for a preference in an action of ejectment when the right depended upon facts which did not appear in the pleadings or other papers upon which the cause is to be tried. I think that the order is not appealable. (Code Civ. Proc. § 793; Nichols N. Y. Pr. 3635.) Although the said statute reads, “Such an order is not. appealable,” I think that the Legislature intended to deny the right of appeal whether the application for such an order was granted or refused. Qui hceret in litera, hceret in cortice. If such an order is granted and yet an appeal lies, then the very appeal might defeat the preference. If such an order is denied and yet an appeal lies, then the appellate court would be authorized to interfere in a matter of discretion in the regulation of the trial calendar, which must be determined not only by the merits of the particular case, but by the relative rights of other causes, of which the appellate court would be ignorant. If such an order seems ill-advised, then the said statute prescribes procedure of vacation. If the application is denied then there is no substantial right affected that would justify provision for an appeal, as the matter relates to the discretion of the trial court in determining the but rightful relative place of a cause upon its calendar. The principle that denies the right of appeal is that which commits to the trial court, in matters of discretion, the control of its calendar. As Van Brunt, P. J., said in Riglander v. Star Company (98 App. Div. 101, 104; affd., 181 N. Y. 531): “One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs.” I do not find that this question of practice has been raised or discussed in cases wherein the appellate court has entertained the appeal.

I vote to dismiss the appeal, with costs.

Carr, Rich and Putnam, JJ., concurred; Burr, J., read for affirmance.

Burr, J. (dissenting):

I am inclined to the view that an order denying a motion for a preference when the relief is sought upon facts which do not appear in the pleadings is appealable (Code Civ. Proc. § 793), and certainly we have entertained such appeals in the past. But upon the merits no reason is shown for granting a preference which would not apply to every case when the parties were somewhat embarrassed by the delay necessary to reach the case in its regular order on the calendar. In addition, I think the plaintiff waived any claim for preference by failing to obtain an order therefor, which was served with his notice of trial. This is not a case where the claim to preference is based upon facts which have arisen since the notice of trial was served. I, therefore, vote to affirm the order appealed from, with ten dollars costs and disbursements.

Appeal dismissed, with ten dollars costs and disbursements.  