
    Clayton S. Goss, Respondent, v. C. S. Goss & Company, Defendant, Impleaded with Clair Foster, Appellant.
    First Department,
    June 5, 1908.
    Practice — legal and equitable defenses — motion for separate trials.
    Where, in an action at law, the defendant as a second separate defense and by way of counterclaim sets up an equitable cause of action which, if established, would entitle him to an affirmative judgment appropriate only to a suit in equity, the proper practice is to move for an order directing separate trials of the separate issues in the appropriate forum and the order of trial thereof. Where the equitable defense, if established, would extinguish the plaintiff’s cause of action the equitable issue shduld be tried first.
    Appeal bv the defendant, Clair Foster, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 27th day of April, 1908, denying the said defendant’s motion to strike one of the issues herein from the Special Term calendar.
    
      Henry Escher, Jr., of counsel [Escher & Fox, attorneys], for the appellant.
    
      Henry W. Clark of counsel [Frank H. Platt with him on the brief, O'Brien, Boardmam & Platt, attorneys], for the respondent.
   Clarke, J.:

This action was brought to recover on two promissory notes made by the defendant Goss & Co. to the defendant Foster, indorsed by him and delivered to the plaintiff. The defendant Foster in his answer sets up as a separate defense and by way of counterclaim an equitable cause of action which, if established, would not only constitute a defense to the notes sued on, but would entitle the defendant to an affirmative judgment appropriate only in an action in equity. .

The plaintiff served a notice of trial for the issues set up in the complaint and in the first separate defense and counterclaim for the Trial Term, and likewise a notice of trial of the issues set up in the second separate defense and counterclaim and the reply thereto for the Special Term. The defendant cross-noticed all the issues for the Trial Term and returned the notice for trial at the Special Terra. Thereafter the plaintiff put the issues raised by the second separate defense and counterclaim and the reply thereto on the Special Term calendar for trial without obtaining any order therefor. The defendant moved to strike said issue from said Special Term calendar and the motion having been denied appeals.

The Code of Civil Procedure does not seem to contain any provisions which precisely apply to the facts disclosed upon this record. We find no statute providing for the service of two notices of trial, one on the equity and the other on the common-law side of the court in one action. It is quite evident that if the defendant succeeds on his equitable counterclaim there is an end to the plaintiff’s cause of action, and it is also quite evident that the Trial Term is no place in which to try such equitable counterclaim because the method of procedure, the decision upon which a judgment could be entered is one to be made by the court, and if the issues were tried together there would be the anomaly presented of a verdict by a jury on one branch and a decision by the court upon the other, and a judgment to be entered thereon for which we can find no authority.

We are of the opinion, therefore, that the proper practice in such case is to move for an order directing separate trials in the appropriate forum of the separate issues and the order of trial thereof. In the case before us such an order should provide that the equitable issue be first tried and the trial of the other issue should be stayed until the determination of said equitable issue.

It follows, therefore, that the order appealed from should be reversed and the motion to strike the cause from the Special Term calendar granted, with leave to the plaintiff to apply for an order directing the separate trials of the issues and the order thereof, without costs to either party upon this appeal..

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Order reversed and motion granted, without costs, with leave to plaintiff to apply for order as indicated in opinion.  