Smith v. Western Pacific Railway Co.
New York Court of Appeals
Appeal, "by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 21, 1911, which affirmed an order of Special Term directing the trial of certain issues raised by the pleadings in this action prior to the trial of the remaining issues. The appellant brought the action to' recover a balance claimed to be due on a contract for services.
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Appeal, "by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 21, 1911, which affirmed an order of Special Term directing the trial of certain issues raised by the pleadings in this action prior to the trial of the remaining issues. The appellant brought the action to' recover a balance claimed to be due on a contract for services. Respondent served an answer containing a general denial, and also setting up as one amongst other affirmative defenses the Statute of Limitations both of the state of New York and of the state…
1Opinion of the CourtHiscock, J.
Section 973 of the Code provides: “The court in its discretion may order one or more issues to he separately tried prior to any trial of the other issues in the case.”
This action is one in which the parties are constitutionally entitled to a trial by jury. Under the section above quoted the court ordered a separate trial of the issues raised by an affirmative defense of the Statute of Limitations before trial of the other issues involving what are ordinarily defined as the merits of the action. There is no question but that this separate and prior trial was to be before and by a common-law…
2Cases cited13 opinions
- Hayes v. MissouriSupreme Court of the United States · 1887
- Stokes v. . People of the State of N.Y.New York Court of Appeals · 1873
- Walker v. New Mexico & Southern Pacific RailroadSupreme Court of the United States · 1897
- Central of Georgia Railway Co. v. BrownSupreme Court of Georgia · 1901
- People v. . DunnNew York Court of Appeals · 1899
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- The People v. KellyIllinois Supreme Court · 1931
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