Summary
In Smith v. Western Pacific Railway Company (144 App. Div. 180; affd., 203 N.Y. 499) this court in directing a separate trial of an issue raised by the answer, says: "The direction of the statute is that the order shall rest in the discretion of the court, which should be judicially and perhaps sparingly exercised. If the court's discretion be so exercised the section should prove to be of distinct benefit by saving the time of the court and its litigants and by reducing the expense of litigation.
Summary of this case from Commercial Trust Co. v. Columbia Trust Co.Opinion
April 21, 1911.
Thomas B. Hardin, for the appellant.
F.W.M. Cutcheon, for the respondent.
This is an appeal from an order directing a certain issue in the action to be separately tried, prior to the trial of the other issues in the case. The action is for a large sum of money claimed to be due to the plaintiff as compensation for services rendered in negotiating or assisting in the negotiation of the sale of bonds of the defendant. The defendant, besides denying all, or nearly all, of the allegations of the complaint, sets up a number of separate defenses, one of which is that the action is barred by the Statute of Limitations of the State of California, of which defendant is a resident, and by the Statute of Limitations of the State of New York. It is the issue raised by this separate defense that the order appealed from directs to be tried separately and before the trial of the other issues in the case. The section of the Code of Civil Procedure under which the order is made is section 973, which reads as follows: "The court in its discretion may order one or more issues to be separately tried prior to any trial of the other issues in the case." The section is comparatively new, having been enacted in 1907 (Laws of 1907, chap. 526), and has not as yet received much judicial consideration. The direction of the statute is that the order shall rest in the discretion of the court, which should be judicially and perhaps sparingly exercised. If the court's discretion be so exercised the section should prove to be of distinct benefit by saving the time of the court and its litigants and by reducing the expense of litigation. In general the application of the statute will doubtless be found to be most useful and beneficial if confined to the trail of pleas in bar such as the Statute of Limitations, pleas to the jurisdiction and in some cases to pleas of a former adjudication. In short the section can be most usefully applied to the case of an issue which if determined in one way will end the litigation and render a trial upon the merits unnecessary. It should also appear that the plea to be tried is one which has a reasonable basis to rest upon, and is not interposed merely for delay, and it should also be one which can be tried and disposed of without involving the trial of the merits. The order now appealed from meets those requirements. Indeed the appellant bases his objection, not upon any abuse of discretion in making the order, but upon the supposed invalidity of the section of the Code under which it is made. He insists that the section is unconstitutional because it will permit different issues in the same case to be separately tried before different juries. The provision of the Constitution referred to is contained in section 2 of article 1, and provides that "the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." It is well settled that the purpose of this provision was to preserve inviolate the institution of trial by jury as it existed prior to 1777, but was not designed to limit the discretion of the Legislature in prescribing the procedure by which the trial shall be had. ( Walker v. Southern Pacific R.R. Co., 165 U.S. 593.) The separate trial of the issue, raised by a plea in bar, and that raised by a plea of not guilty has long been known in the trial of criminal causes, and it has been held to lie wholly in the discretion of the trial court whether such separate trial shall be had before the same or different juries. ( People v. Trimble, 60 Hun, 364; affd., 131 N.Y. 118; People v. Connor, 142 id. 130.) We can discover no constitutional infirmity in the section of the Code under which the order was made, and as the court's discretion was properly exercised the order appealed from must be affirmed, with ten dollars costs and disbursements.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.