Opinion
March 25, 1952.
Present — Glennon, J.P., Dore, Cohn, Callahan and Shientag, JJ. [See ante, p. 850; post, p. 1045.]
While the principal question on this appeal was one of res judicata, the basic motion was for summary judgment under rule 113 of the Rules of Civil Practice. This court ordered a separate trial of the question concerning the intent of the parties in the Wisconsin action in stipulating to use the word "non-infringement" in a judgment entered therein. Plaintiff now contends that it was inconsistent to order a separate trial of that issue before a referee on a motion of the present nature (see, however, Civ. Prac. Act, § 467 as to incidental questions arising on a motion.) Without passing upon that contention, we think it would be preferable if a motion is made at Special Term for an order directing a separate trial of the issue of res judicata prior to the trial of the other issues in the case (see Civ. Prac. Act, § 443). The question as to the right of a jury trial of such separate issue may be then determined. We, therefore, grant the motion made by the plaintiff herein for reargument and, upon reargument, recall our prior decision and affirm the order appealed from without prejudice to an application by the defendants at Special Term, if they be so advised, for a separate trial of the issue of res judicata prior to the trial of the other issues in the case. Settle order on notice. Motion by defendant for reargument or for leave to appeal to the Court of Appeals denied (see determination in motion by plaintiff decided herewith.) Settle order on notice.