majority">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.

*445The 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 *446was 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.

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