McCarthy v. Great Lakes Towing Co. , 275 A.D.2d 888 ( 1949 )

Memorandum: This appeal is from an order granting a preference pursuant to rule 151 of the Rules of Civil Practice. So far as the record discloses and as recited in the order, it was granted solely upon the notice of motion and the oral arguments of counsel. While the pleadings are always before the court, the order does not mention them and they are not a part of this record. It cannot be determined from the record what the cause of action is or whether the order was granted as of right or as a matter of discretion. If a matter of discretion, as conceded upon the argument, there appears to have been nothing before the court upon which it could exercise discretion. All concur; Piper, J., not voting. (The order grants plaintiff’s motion for a preference in a negligence action under section 151 of the Rules of Civil Practice.) Present — Taylor, P. J., Love, Vaughan, Kimball and Piper, JJ.