
    Edward H. Gillilan, surviving Partner, &c. v. James K. Spratt.
    The rule that after a cause in a justice’s court is finally submitted for decision, a discontinuance by the plaintiff operates as an adjudication on the merits in favor of the defendant, and is res adjudicataoi the subject matter between the parties, will be limited in its operation to the particular issue involved in the action, and cannot operate as a bar to an action between the same parties, involving other issues, though in the same subject matter.
    The statute does not, in express terms, prescribe any time beyond the day of trial within which a magistrate shall render his decision in summary proceedings for the recovery of the possession of demised premises, and it seems that, in such proceedings; an indefinite postponement of the matter, after trial, for the purpose of deliberation and decision, is unauthorized and ousts the magistrate of jurisdiction. (Per Robinson, J.)
    In summary proceedings instituted by a landlord before a justice of a district court, to disposses a tenant for holding over after the expiration of the term without permission of the landlord, the tenant interposed a counter affidavit denying that he held over, and also denied the landlord’s title on the ground that the title to the premises was vested in the Mayor, &c., of the city .and county of Sew York, under certain proceedings taking the land for a public street. Ten days after the trial and submission of the matter to the justice, he discontinued the proceeding, on motion of the landlord, without notice to the tenant. Held, in an action Subsequently brought by the landlord to recover the rent reserved in the lease and for damages for use and occupation after the expiration of the term, that the discontinuance of the summary proceedings before the justice was not an adjudication in favor of the tenant so as to be a bar to this action.
    Until the opening of a street; the land appropriated therefor by the public authorities cannot be used by them for any other purpose, and in the meantime and until such opening is actually commenced, the owner of the building on the land (unless.required to remove it) can retain possession of it, and is entitled to all the benefits of such possession.
    And it seems, the landlord of premises so appropriated may dispossess his tenant for holding over, although the lease provides that in case the building is required tobe removed in consequence of street extensions, the lease shall become null and void from the time the building is ordered to be removed by the city authorities, it not appearing that the removal had yet been ordered.
    Appeal by the plaintiff from a judgment at trial term.
    The action was brought to recover the sum of §900, being rent of premises Ho. 100 Liberty street, for the months of April, May, and June, 1868.
    By an indenture of lease between the parties, dated March 6,1867, the premises in question were demised to the defendant by the plaintiff, for the term of one year, from May 1, 1867, at the yearly rent of $3,600, payable monthly on the first day of each succeeding month. The lease, among others, contained the following covenant, to wit: that in case the building was required to be removed, in consequence of the extension of Church street, then from the time said building was ordered to be removed by the city authorities, said lease should become null and void, and rent paid to that date.
    On the 30th day of December, 1867, proceedings were taken, and an order duly made and entered by the Supreme-Court, at general term, confirming the report of commissioners of estimate and assessment appointed for that purpose, whereby it was ordered that the premises in question would be required to be taken for the extension of Church street.
    On the 2d day of May, 1868, summary proceedings were instituted by the plaintiff before a justice of a district court to remove the defendant from the premises, for holding over after the expiration of the term without permission of the plaintiff. Issue was joined therein, and a trial had thereon on the 7-th and 9th days of May, 1868, when the whole case was submitted to the justice, who, on the 19th day of May, 1868, on motion of the landlord in said proceedings (the plaintiff in this action), and without notice to the other party, discontinued the same. ■
    The judge below before whom this action was tried, found as questions of fact, in addition to the summary proceedings above stated, the making, delivery and acceptance of said lease, the occupation of the premises therein described by the defendant from May 1,1867, to May 1,1868; the continuance of such occupancy by him through the months of May and June, and until after the 1st of July, 1868 ; and that the value of the use of the premises from May 1, 1868, to July 1, 1868, was $600, which added to the rent for the month of April, 1868, was $900; and that the interest on said several sums up to the day of trial was $58.95, making in all $958.95, no portion of which had been paid by the defendant to the plaintiff.
    He also found as conclusions of law, that the action of the justice, in the summary proceedings, was an adjudication and judgment in favor of the tenant therein (the defendant in this action), and was final and conclusive between the parties as to the subject-matter of the action, and was a bar to the plaintiff’s alleged right to recover rent or damages for the use and occupation of the premises, and thereupon dismissed the complaint, with costs.
    The court below rendered the following opinion :
    Halt, Chief Justice.—After a cause is submitted to a justice for his final decision, it is no longer in the power of the plaintiff to submit to a nonsuit, or in the power of the justice to grant one. The cause having been tried, is submitted for a final decision upon the merits, and no other disposition of it can be made. If the justice after that enters an order which he calls a nonsuit, it will be regarded as a judgment for the defendant, and will be a bar to another action for the samé cause, or of any action for another trial of the same question between the same parties, and in the application of this rule it makes no difference whether it was in a formal action or in summary proceedings. (Elmell v. McQueen, 10 Wend. 521; Peters v. Piossy, 3 E. D. Smith, 116 ; Pemarest v. Pa/rg, 32 N. Y. 290; White v. Ooatsworth, 6 N. T. 137.)
    In this case, the matter in controversy was tried upon the merits, and was submitted to the justice for his decision. He did not pass upon the merits, but, as he testifies, after he had the case under advisement to make up his judgment, the counsel for the landlord appeared before him and moved to discontinue the proceedings; and the justice, without any notice or intimation to the defendant or his counsel, discontinued the proceedings, as he says, and made an entry that they were discontinued upon the motion of the attorney for the landlord. This he had no power to do. It is said, in Hess v. Beehmcm (11 Johns. 457), that “ while the cause is under advisement, the justice ought to hold no communication with either of the parties ;” that “ they are not in court for any other purpose except, to receive judgment.” The case having been tried and submitted, the defendant has a right to have the matter decided; the decision or judgment, if in his favor, being a bar to any farther suit or proceeding against him for the same cause; and of this right he cannot be deprived by the justice discontinuing the proceeding, whether upon his own motion or upon the request of the plaintiff.
    The act of the justice in discontinuing is, and can only be treated as, a decision in favor of the defendant, which, however informal and imperfect it may be, is and must be a bar to any further suit or proceeding for the same matter. If this were not the conclusion, and it wfere held that the proceeding was discontinued by the act of the plaintiff and the justice, after the matter in controversy between the parties had been tried and submitted to the justice for a final decision, it would be equivalent to contradicting what has been repeatedly held, that a nonsuit cannot be granted after the cause has been submitted to the justice or to the jury; and that, if a judgment of non-suit is afterwards rendered, either by the justice, or upon the verdict of the jury, it is equivalent to a judgment for the defendant upon the merits, and will be so regarded. {Félter v. Mvlliner, 2 Johns. 181; Hess v. Beekman, 11 Id. 457; Young v. ILubbeTl, 3 Id. 430; Platt v. Storer, 5 Id. 346; Flwell v. McQueen, 10 Wend. 519; Peters v. JDiossy, 3 E. D. Smith, 115.) When the case is submitted upon summary proceedings, there must be an adjudication, for the only" power of review is upon a certiorari, to be awarded by the Supreme Court; and by the statute the certiorari is for the examination of any adjudication made upon any application authorized by the act providing for summary proceedings. (2 Bev. Stat., 2 ed.-425, § 47.) If the matter put in issue by the affidavit denying the facts upon which the summons issued, has been tried and submitted, and the justice afterwards makes any final disposition of the case other than granting the warrant to dispossess, it is an adjudication in favor of the defendant, to which the maxim applies,, 
      nemo Ms debet vexaripro eadem causa, as fully as to any formal decision or judgment for the defendant.
    Judgment will accordingly be rendered for the defendant.
    The defendant appealed to the general term.
    
      John Ely, William Fullerton, and Henry E. Knox, for appellants.
    
      James J. Thomson, for respondent.
   Larremore, J.

It was held by the general term of this court, in December, 1869, in Detmold v. Drake et al. (a case similar to the one at bar), that until the opening of the street, the land appropriated therefor by the public authorities cannot be employed by them for any other purpose than that contemplated and established by the report of the commissioners. In the meantime, from the date of the confirmation of said report until such opening is actually commenced, the owner of “the building (unless required to remove it) can retain possession of it, and is entitled to all the benefits of such possession.

The parties hereto evidently contemplated such a contingency in relation to the premises in question, and provided in the lease, that the same should become null and void, from the time the building was ordered to be removed by the city authorities.

There is no evidence before us, that any order for such a removal was ever given, and it is fair to conclude that the defendant was not disturbed in his possession during the continuance of the lease. Besides, it appears affirmatively from the findings of the judge at the trial, that the defendant continued in the occupation of the premises until after July 1st, 1868, and that the value of the unpaid rent therefor up to that time was $900. It is not pretended that any claim for that rent has been made by any one, except the plaintiff, and I think his right thereto unquestioned, unless the summary proceedings hereinbefore mentioned constitute a bar to its recovery.

The proceedings referred to were taken May 2d, 1868, after the lease had expired by its own limitation, to dispossess the defendant herein as the tenant of the premises,/or holding over after the expiration of the term, without permission of the; landlord. The defendant by his counter-affidavit denied that he thus held over, and also denied that plaintiff was his landlord, on the ground that the title to the premises was by the said order of the Supreme Court, of December 30th, 1867, vested in the mayor, alderman, and commonalty of the city of New York. The question of rent was not raised or at issue upon that 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 discontinued 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 the 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 redeemed res adjudicatg? This would compel us to hold, that the plaintiff was not entitled to the possession of the 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 v. 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 v. Beekman, 11 Johns. 457; Elwell v. McQueen, 10 Wend,, 521; Peters v. Diossy, 3 E. D. Smith, 115; White v. Coatsworth, 6 N. Y. 137; Demarest v. 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 given expression to such action by a judgment or final determination. The defendant in Hess v. Beekman “ suffered judgment to be entered against himself' for costs.” In Elwell v. McQueen the court say: “ Although he (the justice) may call his judgment a nonsuit and enter it accordingly, if the record or minutes of the trial show that it was rendered after the canse was submitted to him, and after he took time to deliberate, and not at the trial, it will be considered 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 the 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 v. 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 those 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 nofinal 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 the 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.

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 overruled, 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 the justice of the District Court, 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 bis tenant, for holding over after the expiration of the term, without his permission, the defendant denied the tenancy and denied 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 had lecome 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 (the 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 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 his accompanying opinion, this decision is predicated upon certain dicta of the courts as to the effect of non-suits, 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 statue for decision. The cases of Hess v. Beekman, (11 Johns. 457); Elwell v. McQueen, (10 Wend, 521); Peter v. Diossy, (3 E. D. Smith, 115); Demarest v. Darg, (32 N. Y. 284); and White v. Coatsworth, (6 N. Y. 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 adjudicates) seems to have originated in Hess v. Beekman, and to have been founded on a strict construction of the provisions of the statue relating to courts held by justices of the peace (1 Rev. Stat. 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 to 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 in a new action for the same cause, that the statue 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 vexaripro eadem causa” was applicable.

The judgment was held a bar to a new action for the same-cause, and the court says, “ the merits were fairly entered inte and investigated and submitted to the justice.” It best comports with the spirit and “ policy of the statue, 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-harassed 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 consequence 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 adjudícala 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 “ discontinuancehe, 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 issue 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 attempting in summary proceedings to remove his tenant for holding over the term without his consent, is met by an answer, that his title has become vested in the corporation of the city of New York, and although no eviction, disturbance, or attornment to the new owner is alleged, or was claimed on the trial, and the matter so set up by way of answer to his claim, constituted no defense, yet the proceedings instituted by the corporation of the city of New York, under the Act of 1813, relating to the opening of streets in said city, and the order of the Supreme Court confirming the report of the commissioners of estimate and, assessment therein, by which the property in question was taken, and damages awarded the plaintiff therefor, being simply shown, and the justice, after nine days delay and failure to render any decision, having, on motion of the plaintiff and without notice to the defendant, discontinued said proceeding, such non-aotion or discontinuance is to be held as having operated as an adjudication, rendered by the justice upon the facts so at issue, adverse to the plaintiff’s title and right of recovery against his tenant, for rent or for use and occupation. Such a defense has been held by this court, in Detmold v. Drake, as unavailable to the tenant, until the corporation has taken possession, and the same doctrine is maintained by the Superior. Court in Strang v. N. Y. Rubber Co. (1 Sweeny, 78), but the construction given to this result Or discontinuance of the summary proceedings, as determinative of the question at issue, renders it, however erroneous, conclusive as to all matters of fact, or of law, that were, or ought to have been, proved or presented, by way of an answer, to the defense thus assumed to have been successful (2 Smith Lead. Cas. (by Hare & Wal.) 6 Am. Ed. 809). I am of the opinion that such application of the decision in Hess v. Beekman, and those cases recognizing it, can not be held decisive or as affecting this case.

At common law, the discontinuance of any suit or proceeding is no bar to a new action for the same cause. (Earl v. Campbell, 14 How. Pr. 330; Hull v. Blake, 13 Mass. 155.)

Upon such discontinuance, the only remaining right of the defendant is to be paid his costs, and if the plaintiff neglects to do so, then the defendant may go on with the suit, and proceed to judgment for their recovery. (James v. Delavan, 7 Wend. 511; Huntington v. Forkson, 7 Hill, 197; Hicks v. Brennan, 10 Abb. 304; Averill v. Patterson, 10 N. Y. 502.)

A justice of the peace, however, was authorized by the Twenty-five Dollar Act (1 R. S. 393), in case the plaintiff was non-suited, or discontinued, or withdrew his action without defendant’s consent, to. award judgment for costs, against him, and so also by the Fifty Dollar Act of 1824, ch. 238, § 14, and by 2 R. S. 246, § 119. But the justice loses jurisdiction and the action becomes diseontwmed, if he adjourns the cause in any other manner than such as is specially pointed out by the statute regulating his proceedings. (Kimball v. Mack, 10 Wend. 497; Thompson v. Sayre, 1 Den. 175; Wilcox v. Clement, 4 Id. 160; Weeks v. Lyon, 18 Barb. 538; Aberhall v. Roach, 11 How. 95; Wight v. McClave, 3 E. D. Smith, 316.) So, too, if he fails to render judgment “ forthwith,” on the day of trial, in cases of nonsuit, discontinuance, withdrawal and confession, and on the rendering of the verdict of a jury, and in all other cases, within four days after the case is submitted to him for final decision, (Watson v. Davis, 19 Wend. 371; Young v. Rummell, 5 Hill, 60; s. c. 7 Hill, 503; Bissell v. Bissell, 11 Barb. 96; Wiseman, v. Panama R. R. Co., 1 Hilt. 300; Bloomer v. Merrill, 1 Daly, 485), or where he holds the case open for twenty-four hours to enable a party to procure his witnesses. (Green v. Angel, 13 Johns. 469.) So by failure of the plaintiff to appear before a verdict rendered by a jury, or on being called on the coming in of the jury, a verdict could not be received, and a nonsuit must be rendered. (Platt v. Storer, 5 Johns. 346; Shove v. Raynor, 3 Den. 78; Douglass v. Blackman, 14 Barb. 381.) In this court, the principle of Bless v. Beekman, has been held not to apply where the time reserved by the justice for his decision was upon a motion for nonsuit (Seaman v. Ward, 1 Hilt. 52), and its application to actions in the Marine Court of this city has been repudiated by the Supreme Court in Dexter v. Clark (35 Barb. 271).

The justice before whom the summary proceedings in question were instituted was, by the Act of 1857 (chap. 344, § 47), allowed, in actions pending before him, eight days after the trial of the action to render his decision; but neither that act, nor any of the provisions relating to actions before justices of the peace, have any reference to the special proceedings, instituted by landlords, to recover possession of lands.

In the statute relating thereto (2 Rev. Stat. 512, as amended by the acts of 1849, chap. 193; of 1851, chap. 460, and of 1857, chap. 684), the magistrate, before whom it is pending, is authorized, upon request of either party, to adjourn the hearing of such application for the purpose of enabling such party to procure his witness, whenever ” it shall appear to be necessary, but such adjournment “ shall in no case exceed ten days ; ” and he also is allowed, under certain circumstances, to stay the issuing of the warrant of removal for ten days. (3 R. St., 5th ed., 838,, §41.)

Previous to the enactment of the 41st section, above quoted,, it had heen decided, in Nichols v. Williams (8 Cow. 13), that under the statute giving summary means to landlords to oust tenants wrongfully holding over (Laws of 1820, chap. 194, substantially re-enacted in 2 R. S. 513), the judge or justice before-whom the proceedings was pending, had no power to adjourn,, and this 41st section was intended “ to supply such omission (Rev. Notes, 3 R. S. 766), and to relax the stringency of the= rule referred to, to such extent as the Legislature deemed necessary.

No time however, is, in express terms, prescribed or allowed, by statute to the magistrate beyond thefflay of trial, within which he shall render his decision.

None of the various magistrates (2 R. S. 513, § 28) before whom the proceeding can be had (except justices of the peace, by the Act of 1849, chap. 193, § 6) are required to make any entry of their decision, and although the statute contemplates-, some time to -ensue between the decision and the issuing of the-warrant, unless the very day of trial be regarded as the day for such decision, there is no certain mode of calculating the period of ten days allowed for a stay of the warrant by the Act of 1857, chap. 684, § 4. (Watson v. Davis, 19 Wend. 371.) The magistrate is not authorized, as in the Justices’ Courrt Act, to render judgment of nonsuit, discontinuance, or withdrawal of" plaintiff’s action (2 R. S. 246, § 19, sub. 1), although for defect in the landlord’s application or proof, he may undoubtedly dismiss the proceedings. If, upon the merits, his decision is favorable to the landlord, he is required to issue his warrant of removal. The proceedings before him are made by statute “ summary,” and present the sole question whether or not the tenant shall “ forthwith ” remove from the premises. (2 R. S. 513,, § 30.) The provisions authorizing an adjournment or postponement, for periods not exceeding ten days, in each of the cases-referred to, are specific, and, under the ordinary rules, of construction, the maxim, “ expressio wains, est exdusio alterins,” is applicable, and having agreed to the character of the proceeding, a further or other postponement or adjournment would seem to have been contrary to the contemplation of the legislature. Courts of special and limited jurisdiction take nothing by implication (Loomis v. Bowers, 22 How. Pr. 361); and in analogy to the strict construction held as to the powers of this magistrate, while acting in the determination of actions pending before him, and applicable to all officers of special and limited jurisdiction, and upon the considerations above presented, the indefinite postponement of the proceeding in question, for the purpose of deliberation and decision, was equally unauthorized, and the delay to make a decision, for nine days, was as unjustifiable as if he had so delayed it for nine weeks, months, or years; and, in my opinion, after such submission, the postponement ousted him of all jurisdiction.

But were this otherwise, there was in this proceeding no such Procrustean rule as in Hess v. Beekman, impounding the parties for “ four days,” or any other specified period, nor can the allowance, by the magistrate, of its discontinuance, on motion of the plaintiff, on the tenth day after submission, be, by any reasonable fiction of law, held to be a decision in favor of the tenant,- that a warrant ought not to have been issued for the reasons stated in the tenant’s affidavit, or as determining on the merits the questions presented on that hearing.

There is no principle of statutory or common law (except .so far as it has found countenance in the before mentioned strict construction of the Justice’s Court act), which prevents the plaintiff or prosecutor, in any civil suit or proceeding instituted by him, from withdrawing or discontinuing it, prior to any decision rendered against him. Whether such action or proceeding be at law or in equity, in bankruptcy, insolvency, in proceedings for the opening of streets or other statutory proceedings, or in arbitrations, &c., until some adverse right has been legally decided and established against him, he has always been held as possessing a “ locus penitentím” and entitled to abandon or withdraw the prosecution of his claim, whether it was subjudice, as question of fact before a jury, or under advisement before a magistrate or other tribunal, deliberating upon the law or in the exercise of the functions of a jury as to the facts, subject only to the payment to his adversary of any such costs as the law imposes;

The peculiar right of a defendant, who- has set up a counter-claim, to insist upon a continuance of the action, forms no exception. The rule of the Supreme Court,. No. 47, adopted in 1845 (now No. 82), prohibiting the plaintiff from submitting to a nonsuit, after the jury has gone from the bar to consider their verdict, is but one of practice, and certainly would not, under the rule of construction contended for, give a like effect to any discontinuance allowed, while the jury were deliberating,, in contravention of they ule as to a verdict.

The principles announced in Hess v. Beekman, made applicable to proceedings in Justices’ Courts, ought not to be extended, and, in the present case, they were misapplied.

The proceeding" before Justice Quinn could in no sense be held or regarded as decisive of the rights of the plaintiff, as landlord of the defendant or of his claims, as stated in his complaint. The matters set up in the answer, showing no eviction or attornment to another, presented no substantial defense, and the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment reversed.  