Cook v. Howard
| Decision Date | 16 May 1955 |
| Citation | 208 Misc. 358,141 N.Y.S.2d 375 |
| Parties | Ida COOK, James Cook, Coleman Banks, Redell Banks, Eva Johnson, Edward Banks and Lawson Howard, Plaintiff, v. Lawson HOWARD and H. L. F. McBride, Inc., Defendants. |
| Court | New York Supreme Court |
Schneider & Kaufman, New York City (Louis H. Kaufman, New York City, of counsel), for plaintiff.
Richards W. Hannah, New York City, for defendant Howard. Robinson & Gales, New York City, for defendant H. L. & F. McBride, inc.
The plaintiffs have applied for a preference pursuant to Rule IV, subdivision 5, of the Trial Term Rules of this court. The situation presented seems unusual, and it is doubtful whether the express language of the rule warrants the precise relief requested. That rule provides that 'An action to recover for personal injuries resulting in permanent or protracted disability, or an action brought pursuant to Section 130 of the Decedent Estate Law, may be advanced to any Ready Day Calendar or otherwise preferred in the trial or hearing thereof, on motion of the justice presiding at Trial Term, Part I, provided that the plaintiffs, other than those to whom section 182-b of the Civil Practice Act applies, are residents of the County of Bronx, and that simultaneously with or prior to filing the note of issue there shall have been filed with the calendar clerk of Trial Term' copies of the summons, pleadings, plaintiffs' bill of particulars, and certain other papers.
The plaintiffs are residents of Bronx County. They instituted the actions--which have heretofore been consolidated--in this court because the corporate defendant has its place of business in Goshen, New York, and service of process could not be effectuated within the territorial area of the City of New York, and thus jurisdiction was not available to the City Court of the City of New York, although the plaintiffs recognized that the monetary limits of that court's powers were adequate in the light of the injuries sustained and the damages recoverable. Thereafter, the plaintiffs sought to have the consolidated action transferred to the City Court. But the corporate defendant has refused to consent to such transfer.
Quite obviously, as appears from the particulars furnished by the plaintiffs, I cannot say--in the the language of the rule--that the action involves 'personal injuries resulting in permanent or protracted disability'. But to deny these plainting a preference in he circumstances of this case would be unjust. And to require this case to be tried in the Supreme Court--when the plaintiffs...
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