
    Charles E. W. Smith, Appellant, v. Western Pacific Railway Company, Respondent.
    First Department,
    April 21, 1911.
    Practice — separate trial of Code Civil Procedure, sei trial by jury. issues — defense of Statute óf Limitationsiction 973, construed — constitutional law-
    ■ In order that the court may ¡order one or more issues to be separately tried prior to the trial of other issues, pursuant to section 973 of the. Code of Civil-Procedure, it should appeal* thát.thé issue to be tried is raised upon a reasonable basis and is njot interposed for delay. And it should be one which can be tried and disposed of without involving a trial of the merits. I
    In an action to recover á large sum of money for services rendered in negotiating a sale of bonds, the court in its discretion may order that the issue raised by a separate defense, pleading the Statute of Limitations, should be tried before the ¡other issues. ■ • '
    Section 973 of the Code of Civil Procedure is not unconstitutional in that it permits different issues ijn the same cause to be tried separately before different juries, for the constitutional guaranty of trial by jury was not designed to limit the discretion of the Legislature in prescribing the procedure by which such trial shall be had.
    Appeal by the plaintiff, Charles E. W. Smith, 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 15th day of December, 1910.
    
      Thomas B. Hardin, f|or the appellant.
    
      F. W. M. Cutcheon, for the respondent.
   Scott, J.:

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, havmg 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 sparmgly 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 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. 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 j section of the Code under which it is made. He insists that ¡the section- is unconstitutional' because it will permit different issue's 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 viell settled that the purpose of ¡this provision was to preserve inviolate the institution of trial by jury as it existed prior to 1.777, but was not designed to lithit 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.) Thé 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, arid j 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 irifirmity 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, vjith ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin, - Miller and Dowling, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  