Emma Schleestein, Appellant, v. Lester Cohn, Respondent

Emma Schleestein, Appellant, v. Lester Cohn, Respondent. First Department, May 9, 1919. Trial — when motion for separate trial of affirmative defenses of Statute of Limitations and of dischargé in bankruptcy granted. In an action to recover upon two written instruments a motion for a separate trial of issues raised by the defenses of the Statute of Limitations and of a discharge in bankruptcy should be granted, since the determination of either of said defenses in favor of the defendant would terminate the litigation and render a trial upon the merits unnecessary. Section 973 of the Code of Civil Procedure was enacted for the purpose of providing for a speedy trial of such pleas in bar. Appeal by the plaintiff, Emma Schleestein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of March, 1919, denying plaintiffs motion for a separate trial of the issues raised by two affirmative defenses in the answer. M. L. Jacobs of counsel [Adolph Feldblum with him on the brief; Jonas & Neuburger, attorneys], for the appellant. Louis H. Levin of' counsel [Steinberg & Levin, attorneys], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The action is to recover upon two written instruments guaranteeing the payment of two bonds secured by mortgages upon real estate. The fourth defense is that the cause of action is barred by the Statute of Limitations. The fifth that the obligation was discharged in bankruptcy proceedings. The determination of either of these defenses in favor of the defendant would terminate the litigation and render a trial upon the merits unnecessary. Section 973 was added to the Code of Civil Procedure for the purpose of providing for the speedy trial of such pleas in bar. (Smith v. Western Pacific R. Co., 144 App. Div. 180; affd., 203 N. Y. 499; Pemberton v. McAdoo, 149 App. Div. 20; Warner v. Star Co., 162 id. 461; Reich v. Cochran, 171 id. 113.) The order will, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Present — Clarke, P. J., Dowling, Smith, Page and Merrell, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.