(concurring):
This appeal challenges the regularity of the practice which has long prevailed in this department of giving statutory preferred causes preference at each new term of court over non-preferred causes on the general calendar noticed for trial at preceding terms.
This is an action for libel. Issue was joined herein on the 24th day of June, 1899. The case was duly noticed for the November term, 1901, and with notice of trial the plaintiff served a notice of motion for a preference for the first day of the term. The motion was granted, and the cause, which is No. 12,368 on the general calendar, was ordered placed at the foot of the Friday call calendar to be called as provided in rule 7.
The contention of appellant is that these preferred causes have a preference only over the non-preferred causes noticed for the same term, and that they cannot be taken up until all causes upon calendars for previous terms have been disposed of. The question hinges on the construction of that part of section 977 of the Oode of Civil Procedure which reads as follows:
“In the counties of New York, Kings, Queens, Richmond, *362Albany,. Erie, Monroe and Onondaga, where a party has served a notice of trial, and filed a note of issue for a term at which the case is not tried, it is not necessary for him to serve a new notice of trial,., or file a new note of issue for a succeeding term; and the action-must remain on the calendar until it is disposed of.”
As to the first judicial district this is a substantial re-enactment of . section 256 of the Code of Procedure. The other counties have .. been included by amendments enacted from time to time com-mencing with the county of Kings in 1882 (Laws of 1882, chap. 96). The appellant claims that the proper construction of this provision of the law is that in New York and the other counties where causes' are only required to be noticed once and only one note ,óf issue is required to be filed, those causes remain upon the calendar prepared ■ for the term for which they were noticed originally, and that they - must be tried, whether reached at that term or not, before any' cause, either preferred or non-preferred, subsequently noticed can-= be brought on. If this had been the intention of the Legislature I think it would have been expressed in more appropriate language The Legislature has.not provided that no new calendar shall be pre- - pared for succeeding terms until the old calendar is exhausted, but - on the contrary it has expressly provided by this section 977 -that a-calendar shall be prepared for each term of court. It is obvious, I think, that, the sole purpose of this enactment was to relieve: attorneys of the useless but exacting formality of frequently filing ■ notes of issue, and noticing their causes in counties where there are large calendars and many terms of court, and where the trials of ■ issues were often delayed and the rights of litigants prejudiced either by an omission to refile a note of issue or renotice a cause, or the right to move a cause at a pending term was lost by noticing it for a future term without reservation. The Legislature, I think, merely intended that in making up each new calendar the clerk1 should-add thereto, without the filing of a new note of issue^ causes regularly placed on the preceding calendar, but which had not been1' disposed of. • This- construction leaves the practice uniform throughout the-State as to the preference of preferred causes over non-preferred causes, no matter- how often on previous calendars, the: only difference being with reference to the manner of securing- the' preference. .In the counties of New York, Kings, Queens, Erie, *363and in the seventh judicial district the causes are placed on the calendar according to dates of issue and preference is obtained by motion, while in the other counties they are placed at the head of the calendar as preferred causes. (Code Civ. Proc. § 793.) The construction contended for by the appellant imputes to the Legislature an intention, by these amendments, to change the rules of preference which are prescribed in other sections of the Code and to attach a penalty to a failure to notice a cause for the first term after issue joined. If the construction contended for, the right to such preference being claimed in the note of issue (Code Civ. Proc. § 793), by the appellant prevailed, then the Legislature intended to provide that all issues noticed for a particular term, in the counties specified, should be tried at that or succeeding terms before any cause, preferred or non-preferred, with certain exceptions not necessary to be considered, should be taken up. In all other counties of the State, however, where causes must be renoticed and new notes of issue filed for each new term, it is conceded that all issues go upon the same calendar, and that the, last issue, if preferred, takes preference over the earliest if not preferred. But this inconsistency would be one only of the absurdities that would result from such construction. In the last-mentioned counties, if a cause be not ready for trial at a particular term, a party incurs no penalty in not noticing it or in moving it off the-calendar if his opponent notices it. In either case the cause goes upon the next calendar in its proper place according to the date of issue. According to appellant’s contention, however, if a cause be not noticed for a term in New York and' the other counties classified with it in that regard, the result is entirely different. Not only is the right to move the cause at that term lost, but its trial - must be deferred until all causes noticed or on the calendar for that term are first tried. When we consider that unless a cause is ready for trial a party cannot safely notice it for the first term after issue joined, because noticing it estops him from pleading that he is not ready for trial except for cause arising or coming to his knowledge subsequently, it seems manifest that the construction contended for by appellant is erroneous. We think that the true construction is that which has always prevailed in this department and throughout the State, except in Kings county, where it has been recently changed *364by the decision in Schuman v. Brooklyn Heights R. R. Co. (71 N. Y. Supp. 1095; affd. on argument without opinion, 64 App. Div. 620). We are not, I think, under any obligation to follow the Sahúman case and change what I deem the correct calendar practice which has heretofore prevailed in this department.
I have examined the other provisions of the Code' relating to preference in civil and criminal causes, both at Trial Term and on appeal (Code Civ. Proc. §§789, 790, 791, 793), and I find nothing therein which militates against the construction here indicated.
The fact that it has not been the practice in this district to prepare a new calendar for each term of court, as required by section 977 of the Code of Civil Procedure, cannot affect the proper construction of the statute with reference to preferences. Although the question before us is not whether these calendars must be printed, it may be observed that the non-compliance with the law in that regard has prejudiced no one and has resulted in A large saving of money to the taxpayers. In the county of New York, which constitutes the first judicial district, new Trial Terms, consisting of many parts, commence on the first Monday of each month, except the months of July, August and September. The general trial calendar is so large that, except in causes which are preferred, issues of less than two years’ standing have not yet been reached for trial. Of what use or benefit would it be to the court or to the litigants whose causes cannot be reached or to their attorneys for the city to incur the enormous expense of printing new .calendars involving all the issues, new and old, for each new term of court? For the purpose of obviating this unnecessary expenditure of money, this court has prescribed by rule I of the Trial Term Rules that a general calendar shall be made up from time to time as ordered by this court; that it shall be the calendar for the several Trial Terms until a new calendar is ordered to be made; that causes subsequently noticed for trial in which notes of issue are filed shall be added to the general calendar at the foot thereof. This rule, except in so far as it dispenses with the preparation of new calendars, is entirely consistent with the provisions of the Code relating to the preparation of calendars and the giving of preferences. How else could the newly-noticed issues have been added? It would not be practicable to prepare a skeleton calendar to provide for the insertion of such causes in the *365proper places for the term next after their being noticed. It may be that the rule has been improperly construed, and that causes thus added at the foot of the general calendar have not been given their proper place according to their dates of issue in preparing a, list of the causes for the call calendars, but even if so, that does not affect the question now under consideration. Trial Term rule III, which is fully authorized by section 793 of the Code of Civil Procedure, provides that where a preliminary order for a preference is necessary the application therefor shall be made at Part II of the Trial Term, and that if the application shall be granted the court shall direct the cause to be placed on the Friday calendar to be called as provided in rule VIL Rule YII provides, in substance, for a calendar call on Friday of each week for the purpose of preparing a calendar of issues to be tried in the several Trial Terms the week following. Provision is made for publishing notices of a list of the. causes to be so called. This embraces all preferred causes where the right to preference has been preserved and such number of the non-preferred causes as are deemed sufficient to keep the courts in business for the time specified. The proper construction of these rules is that all preferred causes, where the right of preference has been secured, which have been duly noticed, and in which notes of issue have been filed at any term ■ prior thereto, shall be placed on the call calendar, and that in addition thereto the requisite number of non-preferred causes shall be taken from the general calendar according to the dates of issue regardless of whether they were on the general calendar when originally prepared or have been added at the foot. In the case at bar the right to a preference is granted by subdivision 11 of section 791 of the Code of Civil Procedure, and the court has directed that it be heard as a preferred cause pursuant to the provisions of section 793 of the Code of Civil Procedure and the rules made thereunder.. In these circumstances it is conceded in the prevailing opinion that this issue must be given preference, but that opinion declares that in- the county of New York and certain other counties the right of preference in causes specified in section 791 of the Code of Civil Procedure is not absolute, but rests in the discretion of the courts In this view I do not concur. The decision of the court in determining the existence of the facts upon which the right to a preference is based, and also in *366determining whether it is intended to move the cause for trial at the ensuing term doubtless rests somewhat in discretion ; but where the facts are undisputed or are found in-favor of the moving party, then the right to a preference is absolute. In other’ words, the statute is mandatory, not directory; and the discretion of the court is confined to passing upon the facts. These statutory provisions for preference have always been construed as giving an absolute right to a preference, and I see no reason for giving them a different construction now. One of the innumerable evils that will result from construing the statute as vesting the whole matter in the discretion of the court, with a suggestion that preferences ought to be refused, is that the settlement of estates in litigation will be delayed indefinitely. Many other apparent' difficulties might be pointed out, and still others not now apparent will arise from a construction of the.statute which, in my judgment, overthrows the will of the Legislature.
It follows that the order appealed from was authorized and it should be affirmed.
Order affirmed, with ten dollars costs and disbursements.