Sands v. Mueller , 3 A.D.2d 821 ( 1957 )

In a recent ease (Lee v. LeJirer, 3 A D 2d 702), we held that a Justice presiding in the pretrial part of the court has the power to revoke a preference previously granted, provided however that there be placed in the record a statement by the Justice setting forth the facts and his reasons for so doing. The required statement is here lacking, but apart from that we do not think on the facts shown the preference should have been revoked. The record shows a claim by plaintiff of serious injuries, confinement to a hospital on three different occasions for a total of 40 days, and substantial medical and hospital expenses, as well as loss of earnings. If plaintiff is entitled to recover on the basis of these claims, it cannot be said that the case does not belong in this court. Of course, plaintiff should not lose his right to a preference merely because he refuses to waive a jury or consent to a settlement which he deems inadequate. Order unanimously reversed, with $20 costs and disbursements to the appellant and the motion granted. Concur — Breitel, J. P., Botein, Rabin, Yalente and McNally, JJ.