I am entirely satisfied that the plaintiffs were irregular in going to trial while the appeal in question was pending and undetermined. The order was clearly appealable. It involved the question whether certain matters, put forth by the defendant in the form of an answer to the complaint, was a good bar to the action. The special term held them irrelevant, and struck them out as such. It was the right of the defendant to have the judgment of the general term on this question, before going to trial upon the other issues of fact made by the answer. I am asked to look into the pleadings to see that the matters stricken out are entirely immaterial, and do not involve the merits of the action. I cannot perceive that my judgment upon the merits of the answer stricken out is of any consequence. Suppose I should agree with the special term that the matter was irrelevant, and tendered a totally immaterial issue I It would then be only the concurrence of two special terms in the same judgment. The right of the defendant to the judgment of the general term would still remain.
This is not the case of an issue of law and an issue of fact in the same action, where, under the former practice, the plaintiff had his election which to try first] (Gr. Pr. 2d ed. T60,) and where, under the Code, the issue of law must be first tried, unless the court otherwise order. (Code, § 251.) It is *287more like the case of several pleas to the declaration, one of which forms an issue, and upon others no issue is yet joined, either of law or fact. No practice that I have ever been acquainted with, would allow the plaintiff to go to trial in the •case mentioned, upon the issue formed, while upon other pleas "interposed the parties had not come to an issue of any kind. The policy was, that all the issues of fact should be tried by •one jury; and until the parties had got through with their allegations, it could not be known whether the issues which remained to be joined, would be of fact or of law. If they should turn out to be issues of fact, another trial by jury would become necessary. The same rules should, I think, be applied to the practice in actions under the Code.
In the present case, the plaintiffs have not raised an issue of law upon the answer in question, but have procured it to he stricken out upon a summary application. The appeal opens the question whether the answer shall stand, which question must remain open until the general term decides it. Suppose the order appealed from should be reversed, there would be then standing in the same action a verdict on a portion of the issues of fact, and the other portion yet to he tried.
I think the motion of the defendant should be granted with ten dollars costs.
Ordered accordingly.
Note.—The above decision was affirmed, on appeal to the general term at Auburn, in June, 1853, and for the reasons stated in the foregoing opinion.