
    Lorenz Reich, Respondent, v. Alexander Smith Cochran and William F. Cochran, Jr., Individually and as Executors and Trustees under the Last Will and Testament of William F. Cochran, Deceased, Appellants, Impleaded with the Gorham Company and Others, Defendants.
    First Department,
    January 21, 1916.
    Practice — trial of separate defenses before trial of other issues — defense of res adjudieata and' Statute of Limitations.
    Where defendant executors and trustees allege as a defense that the issues raised by the complaint are res adjudieata by reason of judgments in prior actions which arose out of the same transactions and also assert the defense of the Statute of Limitations, it is proper for the court to ®rder that the issues raised by said defenses be separately tried before the trial of the other issues, under the authority of section 973 of the Code of Civil Procedure, for if the defenses be sustained a trial of the merits will not be necessary.
    Appeal by the defendants, Alexander Smith Cochran and William F. Cochran, Jr., individually and as executors and
    
      trustees, 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 2d day of December, 1915, denying their motion that the issues raised by separate defenses and the reply thereto be tried separately and before the other issues.
    
      Samuel Untermyer, for the appellants.
    
      Alton B. Parker, for the respondent.
   Scott, J.:

This is one of a series of actions, extending over a period of about twenty-five years, brought by plaintiff against these defendants, and against their decedent in his lifetime. They all grew out of the same transactions in the year 1888 between plaintiff and William F. Cochran, now deceased, of whose estate the defendants are executors and trustees. The plaintiff’s claim is that the effect of four documents executed in 1888 was to create the relation of mortgagor and mortgagee between plaintiff and the said Cochran. The defendants on the other hand claim that the documents referred to created the relation of lessee and lessor, and nothing else.

By their separate defenses the defendants allege that the exact relationship between plaintiff and Cochran was necessarily involved in and passed upon in several actions between this plaintiff and Cochran or these defendants, as his executors, and that in each case judgment went against the plaintiff. Hence, they claim that the question which lies at the very basis of plaintiff’s present claim is res'adjudicata. It is also claimed in a separate defense that any remedy that plaintiff might otherwise be entitled to is now barred by the twenty-year Statute'of Limitations.

The motion is made under section 973 of the Code of Civil Procedure, which reads as follows: “§ 973. 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 conditions under which this section will be applied were considered and stated by this court as follows: “ 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 thej trial 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.” (Smith v. Western Pacific R. Co., 144 App. Div. 180; affd., 208 N. Y. 499.)

We are of opinion that the present case is an appropriate one for the application of the section above quoted within the rules laid down. The trial of the issues now sought to be separately tried should not be a long one, as the questions involved will necessarily depend mainly upon the records of the previous trials, with but little, if any, oral testimony, whereas it is quite manifest that the trial of the main issue, if gone into, will be prolonged and expensive. Nor can we at all see, as respondent earnestly argues, that the trial of the separate issues tendered in bar will necessarily or properly involve a trial of the main issue tendered by the complaint.

Our conclusion is that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted to the extent of ordering a separate trial, before the trial of the other issues herein, of the issues raised by the second, third, fourth, fifth, sixth, seventh, eighth and ninth separate and distinct defenses, and the reply thereto.

Clarke, P. J., McLaughlin, Laughlin and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion. Order to be settled on notice.  