
    Martin’s Bank (Limited), Respondent, v. Amazonas Company, Appellant. (Action No. 1.)
    
      Preference—foreign corporations—action, between, on an “ evidence of debt for the absolute payment of money" — an absolute statutory requirement obligating the court to give preference is unconstitutional—judicial discretion.
    
    Subdivision 8 of section 791 of the Code of Civil Procedure, giving preference to an action “ against a corporation, founded upon a note or other evidence of debt for the absolute payment of money,” applies to such an action brought by one foreign corporation against another foreign corporation.
    Section 793 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1904, requiring the court to grant a preference to certain classes of actions and to set them down for trial upon a day certain, is unconstitutional.
    Under such section, as it stood prior to the amendment, the preference could, in the absence of special facts or circumstances calling for the exercise of judicial discretion, be allowed only over non-preferred cases noticed for the same term.
    Appeal by the defendant, the Amazonas Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 23d day of June, 1904, placing the action upon the special calendar of Part II for trial, pursuant to rule 5 regulating Trial Terms in the first judicial district.
    
      W. M. Seabury, for the appellant.
    
      Abraham Benedict, for the respondent.
   Laughlin, J.:

The plaintiff, a foreign corporation, brings this action upon a foreign bill of exchange accepted by the defendant which is also a foreign corporation in the city of New York. The answer admits the acceptance, but alleges that it was for the accommodation of the drawers and ultra vires and that respondent purchased the bill with knowledge of the facts. The action falls within subdivision 8 of section 191 of the Code of Civil Procedure which gives preference to an action, among others, against a corporation, founded upon a note or other evidence of debt for the absolute payment of money.” "We are of opinion that no discrimination was intended by the Legislature in the trial of canses between actions against domestic and foreign corporations, and this, we think, has been its accepted construction. (See Polhemus v. Fitchburgh Railroad Co., 113 N. Y. 617; Miller v. Quincy, 179 id. 294.

The learned counsel for the respondent concedes that the order is erroneous in so far as it places the cause upon the short-cause calendar. The motion was to have the cause preferred and set down for a day certain under section 793 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1904, and this is the relief to which the respondent claims that it is entitled. The order cannot be so modified, however, for this court has decided that said amendment to section 793 of the Code of Civil Procedure made in 1904 is unconstitional and void. (Riglander v. Star Company, 98 App. Div. 101.). The plaintiff’s right to a preference, therefore, rests upon the provisions of section 793 of said Code as the same stood before said amendment (See Laws of 1900, chap. 172), and when construed by this court in Morse v. Press Pub. Co. (71 App. Div. 352). It was there held that in the absence of special facts or circumstances calling for the exercise of the judicial discretion the preference should only be allowed over non-preferred cases noticed for the same term.

The order should, therefore, be modified by allowing preference only over non-preferred causes noticed for the same term, and as thus modified affirmed, without costs.

Van Brunt, P. J., Patterson, O’Brien and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  