The order was made pursuant to the provisions of section 793 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1904. The learned counsel for the appellant challenges the constitutionality of this amendment upon the ground that the Legislature has peremptorily directed the court to set preferred causes down for days certain and has deprived the court of any authority to postpone the trial for cause shown. The section prior to the amendment provided that in the county of New York, and certain other counties, an application for a preference given by section 791 of the Code of Civil Procedure should be made to the court or to a justice as might be prescribed by the rules of practice and provided that “ if it shall appear that the cause is entitled to a preference, and is intended to be moved for trial at or for the term for which the application is made, the court or justice may direct that it shall be so heard.”* In Morse v. Press Pub. Co. (71 App. Div. 351) this court held that the preference was not given absolutely by section 791 of the Code of Civil Procedure, but that the court on an application for an order to give effect to the preference was at liberty to exercise its discretion and refuse to grant the order, even though the facts were undisputed and the case belonged to one of the classes preferred by virtue of said section 791, was properly upon the calendar and the motion was regularly made; and further held that no case would be allowed a preference unless some special facts or circumstances, in addition to those prescribed by the statute, were presented calling upon the court to exercise its discretion favorably. I believed then, and am still of the same view, that the effect of that decision was to nullify the preference which the Legislature intended to give the trial of certain classes of litigation, and I gave expression to my views in a dissenting opinion on that point. The Legislature, as I read its intention, decreed the preferences absolutely ; but for the convenience of court and counsel and orderly administration of justice in making large calendars, instead of leaving the right to a preference to be merely stated in a note of issue and acted upon, without discretion, by the clerk, required a special application to the court or a justice showing the right to the prefer*110ence and the election therefor. The correctness of that decision could not he reviewed by the Court of Appeals without the consent of the Appellate Division, and it is not entirely clear that it would have been reviewed on the merits even with such consent. If the decision in that ease was not in accord with the will of the people, with reference to the law of preferences in the trial of causes, there was, therefore, no remedy except through a further enactment by the Legislature. It was the general opinion of the bar, I think, that the authority to determine both the method of procedure and preference in the trial of different classes of litigation was vested in the Legislature and not in the courts. Such is the evident meaning of section 3 of article 6 of the Constitution, which provides “ except as herein otherwise provided, the Legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised,” and it has been so construed by the courts. (Howard v. Moot, 64 N. Y. 262; Hayes v. Consolidated Gas Co. of N. Y., 143 id. 641.) The Legislature, therefore, I think, in the exercise of authority with which it and not the courts was vested, and with a view to declaring that a preference should be given to the trial of certain classes of causes without requiring any fact to. be shown other than that they belonged to that class of causes, enacted the amendment which it is" claimed is unconstitutional. The amendment modified the last sentence of the section by changing the word “ may ” to “ must,” and adding thereto as follows: “ the court or justice must designate a day certain* during that term, on which day the said cause shall then be heard; if there be two or more causes so designated for trial for the same day, the said causes shall be heard in the order of their date of issue.” I am of opinion that the Legislature did not intend to trespass upon the functions of the judiciary, but intended merely to nullify the effect of the judicial trespass upon the province of the Legislature. The object of the amendment was to render effectual the preferences given by the Legislature in the exercise of its constitutional right. The amendment, viewed in the light of the preceding decision, is susceptible of this construction if it does not require it; and that being so, under the well-settled rule of construction the amendment should be given this effect and should not be declared unconstitutional. There was no intention to deprive *111the court of authority to put a case over the term, or otherwise postpone the trial for cause shown. The Legislature merely meant to provide that, when it is shown to the court or a justice that the case is one of the class entitled to a preference under section 791 of the Code of Civil Procedure, a preference must be accorded, and in order that the courts might not, through regarding these preferences with disfavor or otherwise, fail to give the preference, it directed that they should be set for trial for a day certain. That, however, was intended to regulate their status with reference to the other causes upon the calendar, and not to make it mandatory upon the court to set them down, even though one of the parties might not be able to prepare .for trial, or to compel their trial at all hazards on the day for which they are set down. The statute can be given the effect intended by the Legislature without interfering with the judicial discretion to put the case over the term, or to postpone the trial for cause shown, either at the time the motion for a preference is made or when the cause is called for trial on the day to which it is set down. In the case at bar it was not shown that the defendant could not be ready for trial on any day during the term and no cause for putting the case over the term or postponing the trial was shown.
I am, therefore, of opinion that the order should be affirmed.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
See Laws of 1900, chap. 173.— [Rep.