Opinion
March 31, 1958
In an action to recover damages for personal injuries, the appeal is from an order denying a preference pursuant to rule 9 of the Kings County Supreme Court Rules. Order reversed, without costs, and preference granted pursuant to said rule. While it is true that, as the learned Justice at Trial Term indicated, the hospital X-ray report, dated four days subsequent to the accident, indicates that appellant had a degenerative process of the spinal discs which may have antedated the accident, the affidavit of her physician made a prima facie showing that such pre-existing injury was aggravated as a consequence of the accident. Under such circumstances, sufficient was indicated to warrant the granting of a preference under the rule. ( Congress v. Congress, 284 App. Div. 807; Weiner v. Kleiner, 282 App. Div. 107 8.) Murphy, Hallinan and Kleinfeld, JJ., concur; Wenzel, Acting P.J., and Beldock, J., dissent and vote to affirm the order.