
    Theodore Eising, Plaintiff, v. John J. Young, Defendant.
    (Supreme Court, New York Trial Term,
    May, 1902.)
    Calendar — Preference of an action for libel, in the First Department — Code C. P., § 791, subd. 11.
    The statutory preference on the calendar given an action for libel will not, in the First Judicial Department, be permitted to advance such an action over issues noticed for trial at prior trial terms, and to secure such a result some additional reason must appear.
    Such an action is, otherwise, only entitled to a preference over other issues of the same term as that for which it is noticed.
    Motion for a preference.
    Jacoby & Dalberg, for motion.
    Truax & Crandall, opposed,
   Gildersleeve, J.

The plaintiff moves for a preference, under section 791, subdivision 11, of the Code, on the ground that the action is for libel. The moving party relies wholly and solely upon this fact in making the application for a preference. In this county, civil actions, specified in section 791 of the Code, 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 for prior Trial Terms rests in the discretion of the court; but some fact, other 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. See Morse v. Press Pub. Co., 71 App. Div. 351. Ho other fact, for the purpose of securing a preference, than that this action is one specified in section 791 of the Code appears in the papers presented on this motion. Eor the foregoing reason this action cannot have a preference over issues noticed for trial for prior Trial Terms. It may have a preference, however, over the issues noticed for trial at this — the May-—term of the court. The motion to set this cause down for trial upon the day calendar of preferred causes for May 12, 1902, must be denied. ■ An order, however, may be entered giving the cause a preference over the issues noticed for the present May term, in its regular order.

Motion denied.  