Gillilan agt. Spratt. affidavit, denied that he thus held over, and also denied that plaintiff was his landlord, on the ground that the title to said premises was, by said order of the supreme court of December 30, 1867, vested in the mayor, aldermen and commonalty of the city of New York. The question of rent was not raised, or at issue, upon the trial and consequently could not have been submitted to the justice for adjudication, The justice did not decide the case as submitted, but on application of the relator discon tinued the proceedings. We are asked to hold such action on his part to be a final and conclusive judgment in favor of the defendant. But what is the nature and effect of such an adjudication? Is it thereby only established that defendant did not hold over after expiration of his term, and without permission? Or are all the averments in defendant's counter-affidavit, of which proof was offered on the trial, to be deemed res adjudicata? This would compel us to hold that the plaintiff was not entitled to the possession of said premises after the order confirming the report of the commissioners of estimate and assessment was made, when, as we have already seen in the case of Detmold agt. Drake, a directly opposite theory was maintained by the general term of this Court, The cases cited to sustain the position of the respondent (Hess agt. Beekman, 11 Johns., 457; Elwell agt. McQueen, 10 Wend., 521; Peters agt. Diossy, 3 E. D. Smith, 115; White agt. Coatsworth, 2 Seld., 137; Demarest agt. Darg, 32 N. Y., 284), all proceed upon the theory that the judicial mind had acted upon, the merits of the case as submitted, and giving expression to such action by a judgment or fina! determination. The defendant in Hess agt. Beekman "suffered judgment to be entered against himself for costs." In Elwell agt. McQueen the court say, "although he (the jus tice) may call his judgment a nonsuit, and enter it accordingly, if the record or mir.utes of the trial show it was rendered after the cause was submitted to him, and after he Gillilan agt. Spratt. took time to deliberate, and not at the trial, it will be cousidered a judgment for the defendant, and will be a bar to any subsequent action." It might be claimed that as the justice had no authority to discontinue said summary proceedings, that the same are still under advisement by him, and his decision thereon might be enforced. Whether this view be correct or not, it is evident that said justice, by allowing such discontinuance, plainly indicated that he had not passed upon the merits of the case, but intended to leave the parties in the same position as if no such proceeding had been instituted. To construe such action on his part as a final determination is to compel him, by implication, to do that which he never intended, but expressly disavowed. Nor are we to presume that the justice would have decided contrary to law, and as the whole case turned upon the question of ownership, as decided by this court in the case of Detmold agt. Drake, above referred to, it is fair to assume that if the justice had finally determined the matter, such determination would have been in accordance with the law as thus established. No review. could have been had on a discontinuance of said proceedings, and if said action be regarded as final, the party concluded thereby is without remedy. In the case before us, the question of rent was not raised or litigated, and as it appears that no final adjudication was intended, it would be a severe application of the rule, where the occupation of the premises and the value thereof, are conceded, to deny a recovery on the ground of a former adjudication.in which the same merits were not involved, and especially when it appears that the greater portion of said rent was for a period of time after the expiration of the lease, and was claimed solely on the ground of the use and occupation by the defendant of the premises in question. The judgment appealed from should be reversed, and a new trial granted. Gillilan agt Spratt. LOEW, J.-I concur that neither the summary proceedings to recover possession of the demised premises, by reason of the expiration of the defendant's term, nor the action of the justice in discontinuing the same, should be held a bar to plaintiff's right of recovery in this action, which was for rent and damages for use and occupation, and I therefore agree that the judgment should be reversed, and a new trial ordered. ROBINSON, J.-I am of the opinion that the learned judge, before whom this cause was tried, erred in regarding the summary proceedings between the landlord and tenant, had before Justice QUINN, of any force or effect upon the rights of the parties, as presented upon the pleadings and evidence. In those proceedings, instituted by the present plaintiff, for the purpose of dispossessing the defendant as his tenant, for holding over after expiration of the term, without his permission, the defendant denied the tenancy, or that he so held over after expiration of his term, and while admitting the original letting, set up that the plaintiff's title had ceased and become vested in the corporation of the city of New York. The issue thus joined, came on for trial before the justice, and after the testimony was closed, the case was submitted to him for adjudication and decision, on the 9th of May, 1869, but before he had rendered any decision, and on the 19th day of May 1869, on motion of the landlord, (the plaintiff in this action,) and without notice to the other party (defendant,) the justice discontinued the proceedings. Upon these facts the judge, who tried this cause, held that such action of the justice was in law an adjudication, and a judgment in favor of the defendant, which was final and conclusive between the parties, as to the subject matter, and a bar to plaintiff's right of recovery of rent accruing under the lease for the last month, or damages for the subsequent use and occupation of the premises, and has thus Gillilan agt. Spratt. decided that, by such proceedings, the landlord's title was determined, and that the property and right of possession thereof, belonged in fact, to the corporation of the city of New York. In the accompaning opinion, the decision is predicated upon certain dicta of the courts as to the effect of nonsuits, discontinuances or withdrawals of actions, pending before justices of the peace, in cases tried and submitted to them upon the merits, within the time prescribed by statute for decision. The cases of Hess agt. Beekman, (11 Johns. 457;) Elwell agt. McQueen, (10 Wend., 521;) Peters agt. Diossy, (3 E. D. Smith, 115;) Demarest agt. Darg, (32 N. Y., 284;) and White agt. Coatsworth, (2 Seld., 137;) are referred to in this view of the case, and in support of the judgment. The principle to be deduced from these cases (so far as it affects the question of res adjudicata,) seems to have originated in Hess agt. Beekman, and to have been founded on a strict construction of the provisions of the statute relating to courts held by justices of the peace, (1 R. S., 388, § 2,) which required the justice, after having heard the proofs and allegations of the parties, within four days thereafter to give judgment thereon agreeable to law and equity, with costs of suit. In that case, the cause had been so tried and submitted, but within four days, the plaintiff withdrew his suit and suffered judgment to be entered against him "with costs," and the court held, on a new action for the same cause, that "the statute was imperative; that after hearing and examining the proofs and allegations of the parties, the justice within four days, shall give judgment thereon"; that "the parties, are not in court for any purpose, but to receive judgment," and that the maxim "nemo bis debet vexari pro eadem causa" was applicable. The judgment was held a bar to a new action for the same cause, and the court say, "the merits were fairly entered into and investigated and submitted to the justice. It best comports with the Gillilan agt. Spratt. spirit and policy of the statute, to hold the plaintiff concluded." The authority of this case, as a rule, governing proceedings in courts of justices of the peace has been followed or recognized in the other cases above cited, and its manifest spirit and intent is to discourage renewed litigation in such petty courts and to save parties from being harrassed about such small matters as were there cognizable, where the costs to be awarded, were so trivial, and inadequate an indemnity. for the trouble and expense of a second defense. The consequences of such an adjudication, as to the withdrawal or discontinuance of such a suit within the four days allowed for decision, are inconsiderable, while its application is confined to the particular claim in suit, and merely results in preventing a second action from being brought for the same cause, but its inconvenience, if not injustice, will become apparent when in litigations between the parties on other claims, such a fiction of the law is to be assumed (contrary to the truth,) as an actual decision by the justice upon the merits, and the principle of res adjudicata deduced from it, held as decisive in other controversies that may arise between them, upon all questions of fact and of law, involved in the original action. The proceedings in question were merely discontinued; and were such that the justice could not render therein any formal judgment of "discontinuance." He, in fact, made no decision or final determination from which an appeal could have been taken by either party; yet, if his mere allowance of a withdrawal of the proceeding is to be held a judgment in law adverse to the landlord, it cannot be limited as an adjudication upon any particular issue, but must be regarded as determining all such as were necessary to uphold the judgment or were within the issues joined or tendered. Its application to the facts and circumstances of the present case, demonstrates the extent to which such a departure from the rule of the common law may work injustice. Here the landlord, in |