
    Berk Ortner, Plaintiff, v. The New York City Railway Co., Defendant.
    (City Court of New York, Special Term,
    April, 1907.)
    Calendar — Order on calendar — Preference — By special order.
    In an application for a preference, in an action against a carrier to recover damages for personal injuries, based upon an affidavit of the plaintiff’s physician that plaintiff can live but a short time and cannot be cured; that his condition has become worse and the injuries received have been effective in shortening his life; but where the affidavit specifies no fatal injury, nor form of disease, nor the character of alleged internal injuries, and the opinion expressed as to the duration of plaintiff’s life is not corroborated and no immediate necessity or compelling circumstance is shown, the application should be denied.
    Motion for a preference.
    Scherer & Dashew, for plaintiff.
    Charles E. Chalmers, for defendant.
   Wadhams, J.

Motion is made for preference on the ground that injustice would be done plaintiff by reason of his declining health unless a preference were granted. The application is addressed to the discretion of the court and some fact should be presented to the court other than that the case is one which might be preferred. Carroll v. Pennsylvania Steel Co., 96 App. Div. 165. In this case the plaintiff is about sixty years of age and the affidavit of his physician states that he is of the belief, and it is his convinced and sincere opinion, that the plaintiff cannot prolong his life for more than about a year at the most.” The injuries are particularized as “ bruises, lacerations of the skull, bruises and contusions of the left shoulder, resulting in a serious injury to the left shoulder joint, and internal injuries of a serious nature, bruises, lacerations and contusions of his right leg, resulting in permanent sticking pains in said leg, and other bruises and contusions about the body and limbs as to result in a permanent headache since the 19th day of June, 1906.” It is further alleged to be the belief of the physician “ that the plaintiff cannot be cured j” that his condition has become worse, resulting in a complication of several diseases and sicknesses, particularly a general debility, weakness and nervous twitching,” and that “ the injuries and resulting consequences thereof have been very effective in bringing about the shortening of the plaintiff’s life.” Without passing upon the question whether or not the court should exercise its discretion in a case of probable death in the near future by reason of the injuries sustained or other cause, it is clear that this is not such a case. No fatal injury nor form of disease is specified. The alleged internal injuries are not stated. The bruises and lacerations are alleged to have resulted in pain and a general debility, and the uncorroborated opinion of plaintiff’s physician is that plaintiff cannot prolong his life for more than a year. There is no immediate necessity nor compelling circumstance shown to warrant the exercise of the court’s discretion in favor of this plaintiff. The calendar is crowded and if this motion were granted great injustice would be done to many other litigants whose rights are at issue, as well as the rights of the parties to the action on which this application is made. Morse v. Press Pub. Co., 71 App. Div. 351. Motion denied, without costs.

Motion denied.  