Bacon v. Lehman ( 1955 )

McGivern, J.

Plaintiff, at present totally disabled, sought a preference pursuant to rule 151 of the Rules of Civil Practice. On March 25,1955, the motion was denied upon the grounds that at that time it appeared to the court that plaintiff had failed to make a showing within the precedents. Thereafter plaintiff was afforded the opportunity to reargue. This motion the court grants.

After the accident in issue occurred, plaintiff made application for assistance from the department of welfare of the City of New York (home relief). Being a veteran, plaintiff was relegated for assistance to the Veterans’ Administration, and was awarded a disability pension based on total disability and destitution.

The precedents construe rule 151 of the Rules of Civil Practice as permitting a preference in cases where the party seeking such preference is a public charge.

Herein, we have a situation where the home relief authorities have referred the plaintiff to the Veterans’ Administration, and were it not that he is a veteran, he would have presumably received public assistance from the department of welfare, and thus qualified for a preference as a public charge. It does not seem right to deprive him of the preference because he is a veteran. Therefore, in the statutory language of rule 151, in ‘ ‘ the interests of justice ’ ’, this motion is granted, and the cause is set down for trial on the Ready Day Calendar of this court to be called October 3,1955. Order filed.