The opinion of the court was delivered by: NEVIN
There are a number of defendants in this action. Some having been heretofore dismissed I think there are now eight remaining. Some of counsel, both for plaintiff and the respective defendants, live in cities other than New York.
I asked the Calendar Commissioner, therefore, to have one of counsel for plaintiff, living in New York, and one of counsel, living in New York, for some one of the defendants to come here this morning, as I thought such representation would be sufficient for present purposes. In this connection, I may add that of counsel for the defendants, I asked the Calendar Commissioner to have someone present who is associated in the case with Mr. A. L. Hodson. This, for the reason that it was arranged at the conclusion of the oral arguments, as shown on page 347 of the transcript, that I should send any communications to Mr. Hodson and Mr. Neuman jointly, and that they would thereafter notify their associate counsel.
I have asked counsel to come in at this particular time for the following reasons:
I have been in New York for some days, but am today concluding my work here for the present. I have reached certain conclusions in the instant case and I thought it would expedite the matter if I would announce them here and now, with counsel for the respective parties present, and at the same time make some arrangements, tentative, at least, looking to the future disposition of the case. All of this, I felt could be accomplished more satisfactorily with counsel present here in court than by correspondence, though, of course, other counsel may communicate with me by letter after they had had an opportunity to read a transcript of the proceedings here today if they wish to do so. In that event, any communication should be addressed to me Care the United States District Court at Dayton, Ohio.
On August 18, 1948, an order approved by Judge Knox, was entered in this Court in this cause. That order reads in part as follows:
'Upon the complaint filed herein on March 16, 1945, the bill of particulars filed herein on April 19, 1948, and the answers of the respective defendants filed herein on June 17, 1948, and
'It appearing to the Court that the answers of the respective defendants have each raised the affirmative defenses of the statutes of limitations, and
'It further appearing to the Court that the attorneys for the plaintiff and for the respective defendants, with the object of promoting an early determination of this action, request and consent to a separate trial of the issues hereinafter defined presented by the affirmative defenses of the statutes of limitations, as evidenced by the sub-joined consent of said attorneys, * *
'It is therefore ordered, that the issues presented by the affirmative defenses of the statutes of limitations to the claim asserted in the particularized complaint be tried as separate issues in advance of the trial of the other issues of this action; that for the purposes of such separate trial the allegations of the Complaint and of the Bill of Particulars shall be taken as true; * * * and that any trial of the remaining issues in this action be postponed until such time as this Court may fix upon further application to this Court after final determination of the trial of the aforesaid separate issues.'
After the entering of the foregoing order briefs were filed on behalf of each and all of the respective parties. Thereafter, on December 12, 1949, the cause came on for hearing, by way of oral argument on the 'separate issues' referred to in the Order.
The oral arguments occupied the whole of two days. During the arguments there was filed with the Court, on December 13, 1949, a document containing 'Stipulations of facts and presentation of issues entered into between counsel for the plaintiff and counsel for the respective defendants'. This document was marked 'Court's Exhibit 1' for the purposes of the 'separate trial.'
A detailed discussion of the various arguments presented or an analysis of the numerous cases cited would necessitate a lengthy decision unjustifiable, in the opinion of the Court, in the light of rulings already made.
In the view of the Court, it is necessary here only to state its conclusions, reached after a careful study of the briefs and arguments of counsel. These conclusions are as follows:
(1) The Court is of the opinion, and so finds, that the Federal Tolling Act of October 10, 1942, 56 Stat. 781, c. 589, suspended all existing State statutes ...