Schleestein v. Cohn

188 A.D. 48, 175 N.Y.S. 890, 1919 N.Y. App. Div. LEXIS 6535

Opinion

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.