
    William A. Brady, Appellant, v. The Kinetoscope Exhibiting Company and Samuel J. Tilden, Respondents.
    
      Postponement for the day', because of the plaintiff’s illness, of a ease on'the preferred. ' : . " calendan'in the first judicial district.
    
    Where, when á case is reached which has been properly placed upon the preferred calendar under rule 6 of the rules for the regulation of the Trial Terms of the Supreme Court in the first judicial' district, the plaintiff is unable to appear by reason of illness, the- presiding justice has, in the exercise of the discretion vested in him as to the disposition of cases upon the day calendar, - power to grant an application that the case be put over until the next day.
    Appeal-by the plaintiff, William A. Brady, 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 5 th day of April, 1897, denying his motion to restore the. cause to thé prer ferred calendar for trial.
    
      
      I. M. Dittenhoefer, for the appellant.
    No appearance for the respondents.
   Per Curiam:

This action was- on the preferred calendar on the 4th day of January, 1897. Upon the call of the calendar on that day it appeared, and was stated to the justice presiding at the term, that the wife of the plaintiff had died a few days before, and that the plaintiff was at that time sick and in bed because of his grief on account of the sudden death of his wife, and unable to attend the trial of the action. Application was made that the case might stand over until the next day, at which time the plaintiff would be able to appear. This was consented to by the defendants’ counsel, but the justice denied the application and sent the case to the foot of the calendar because of want of power to give the relief requested. A motion was subsequently made to restore the case to the calendar, upon affidavits in which these facts were made to appear, and that motion was denied. No opinion was written and no reason given in the order why the motion was denied.

We do not agree with the learned justice that the court had no power to grant to the plaintiff the relief asked for on the fourth of January and to let the case stand until he was able to appear in court. The right to have the case on the preferred calendar is one given by statute. (Code Civ. Proc. § 791, subd. 10.) Rule 6 of the Rules for the Regulation of the Trial Terms of the Supreme Court in the First Judicial District, prescribes that a case like this shall be put upon the preferred calendar upon proper application, and when an order so putting it upon the calendar has been made, it is to be called in Part II of the Trial Term and disposed of in its regular order thereon.' The rules contain no further direction as to the disposition of the case upon the preferred calendar; but it is not necessary that they should. The justice sitting in that court, like a judge sitting in any other court for the trial of causes, has necessarily vested in him some discretion as to the disposition of cases upon the day calendar. He is not obliged to order them peremptorily to trial simply because they are upon the calendar. If it shall be made to appear to him that something has occurred since the case was put on the calendar which renders it unjust to compel either party to go to trial, he always has authority to give such direction' in regard to the case as "circumstances, shall seem to require. There is no hard and fast'rule which compels a judge to disregard the existing conditions at the time a case is-reached upon the day calendar and force a party to- trial when, manifest injustice, would- result from that act. We' have no doubt that the court had power to grant to the plaintiff the relief he asked for-on the fourth of January when he was sick -in his bed ; and after that. had been denied 'this-motion tb restore the case to the preferred- calendar should have been granted. ■ ,

- The order denying the motion should, therefore, be reversed, and the motion granted, but under the. circumstances, as the defendant did not oppose the' granting of the. -order, .it should be without costs.

Present —Van Brunt, P. J:, Rumsey, Williams, Ingraham and Parker, J J.

Order reversed and motion granted, without costs.  