of November, 1878, and the Board be granted where there had been of Aldermen, acting as county can- unreasonable delay in the applicavassers, declared he was not elected, tion therefor, here no such delay apand he duly protested. At the first peared. meeting of the Board of Aldermen Held further, That the writ should for organization he petitioned the not have been quashed even though board to be admitted to his seat the relator's term of office has exon the ground that he had been pired and the board gone out of exelected to the office, and charged istence. The certiorari may be (thus that in one of the election districts preliminarily) sustained in analogy the inspectors had made a false re- to the English rule by which an turn with respect to the number of information in the nature of a quo votes cast for the candidates. The warranto may be granted although petition was referred by the Board the case cannot be tried until the of Aldermen to a committee of three, term of the officer is at an end. a majority of which committee, after There the writ has been allowed taking evidence in behalf of each of even after the termination of the the claimants to the office, reported against the relator. Thereupon the The relator's object is, if possible, relator brought action in the nature to secure a reversal of the proceedof a writ of quo warranto; his action ings with a view to an action against was dismissed at the trial term and the alleged usurper for the salary of the judgment of dismissal was the office. He should have an opaffirmed at General Term and in portunity of showing that he was the Court of Appeals on the ground unjustly deprived of his office, and that the relator had submitted the matter to the Board of Aldermen, and their decision remained unreversed. The Court of Appeals rendered its decision February 20th, 1880. On the 19th of March, 1880,

office.

if he can sustain his position in that respect, the court should facilitate every lawful effort to secure its emoluments.

Order reversed.

Opinion by Brady, J.; Davis, P.

the relator procured a writ of J., and Barrett, J., concurring.
certiorari, which writ was quashed
upon the ground of laches, and upon
the ground that no useful object

FORMER ADJUDICATION.
LANDLORD AND TENANT.

could thereby be secured, inasmuch N. Y. SUPREME COURT. GENERAL

as the term of office of the Board of
Aldermen to which the relator claim-
ed to have been elected had expired.
L. C. Waehner, for applt.
W. C. Whitney, for respt.
Held, That the writ should not
have been quashed. That the re-
lator had shown diligence. That,
while it is true the writ would not

TERM. FIRST DEPT.

John T. Ackley, plf. v. Eleanor J. Westervelt, deft.

Decided July 30, 1880.

A former judgment of a court of competent jurisdiction with respect to a fact in issue is as evidence conclusive between the same parties in a subsequent action or proceeding.

The relation of landlord and tenant being once Such judgment was relied upon by established continues until severed by the agreement of the parties or by some other act or proceeding sufficient in law to accomplish that result.

the plaintiff to establish his case, and was admitted against objection and exception.

The defendant showed a demand by Ackley of a surrender of the premises or the payment of the rent, to wit, by instituting summary proceedings before commencement of the former suit. And the point is made by the defendant on this appeal, that such demand destroyed

Motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term. Action to recover of the defendant the rent of certain premises known the relation of landlord and tenant, as No. 319 West Thirty-second street, in the City of New York, from the first day of February, 1870, to the 1st day of October, 1875, at the annual rent of $1,500. The action was tried at circuit and a verdict directed for the plaintiff.

at least so far as such relation ex-
isted by reason of the agreement.
Robt. S. Green, for plff.
John L. Hill, for deft.

Held, We think the evidence produced competent and sufficient to establish the relation of landlord and tenant between the plaintiff and defendant. The precise question was litigated and determined in the previous action, and concluded the parties upon such question. The relation of landlord and tenant being established, it continued until severed by the agreement of the parties or by some other act or proceeding sufficient in law to accomplish that result.

Heretofore Mrs. Westervelt, the defendant here, brought an action against Ackley, the plaintiff, to have the deed under which Ackley claimed to own the premises declared a mortgage. Ackley answered in that action, and among other things set up a claim for rent as a counterclaim, under an alleged agreement whereby Mrs. Westervelt agreed to pay $1,500 annually as rent for such premises then occupied by her. Judgment was rendered in that ac- The service of the notice requiring tion in favor of Ackley confirming the payment of the rent or a surthe validity of the deed to him, and render of the possession of the premawarding judgment in his favor for ises to Mrs. Westervelt, followed by the rent at the rate of $1,500 per the affidavit made by Ackley, exyear, less certain payments made by plained as they were by him upon Mrs. Westervelt. On the trial of the trial, and considered in connecthis action the judgment record in tion with the further fact that Mrs. the former suit was introduced in Westervelt was not dispossessed, or evidence by the plaintiff here to es- in any manner disturbed in her octablish the relation of landlord and cupancy of said premises, could not, tenant as well as the agreement un- in our judgment, have the legal der which such relations existed. effect to destroy the relation of

landlord and tenant, or prevent the spondent, Thayer, upon a judgment accruing of rent.

The coverture of the defendant did not constitute a valid defense to the action. She was competent to contract in regard to the subject matter, and to bind herself in relation thereto. Judgment directed on the verdict in that the execution omitted to diherein, with costs.

Opinion by Ingalls, J.; Davis, P. within sixty days. A motion was J., concurring.

A body execution was heretofore granted the motion canceling the issued in this action against the re- return of the sheriff and replacing

the execution in the sheriff's hands, and leaving that officer to resume his custody of the defendant, and thereupon make a new and proper return.

interfere where the relator has a simple and adequate legal remedy.

The writ of prohibition is not designed to correct those errors which may occur in the progress of the trial and decision of causes, and may be corrected on appeal.

Appeal from an order granting a

The validity of the execution was in no way impaired by the sheriff's return thereof, and it was the duty writ of prohibition, forbidding the of the court, at Special Term, in Marine Court from taking further view of the determination of the proceedings in an action between General Term allowing the amend- the relator and the respondent Talment of the execution nunc pro tunc, to have granted the order remanding the execution.

cott.

In an action brought in the Marine Court by the appellant, Talcott, The case is different from the case against the respondent,Salke, Talcott, where, by a reversal of the judg- the plaintiff therein, appealed to the ment upon which the execution is General Term of the Marine Court, based, the very foundation of the and, on such appeal, the judgment execution is overturned, like the was reversed, and a new trial orcase of Gleason & Roberts. MSS. dered. Thereupon Talcott appealed Opinion Court of Appeals. The to the General Term of the Court of effect of the amendment directed by the General Term was plainly to restore the original and legal status. Order reversed, with $10 costs and disbursements of the appeal, the return canceled, and the execution remitted to the sheriff.

The order in the habeas corpus proceedings reversed, and the prisoner remanded to the custody of

the sheriff.

Opinion by Barrett, J.; Davis, P. J., and Brady, J., concurring.

PROHIBITION.

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

The People, ex rel. Lewis Salke, respt., v. James Talcott and the Marine Court, applts.

Decided July 30, 1880.

Common Pleas from the order of the General Term of the Marine Court, but the notice of appeal to the General Term of the Common Pleas did not contain any stipulations for judgment absolute in favor of respondent in case appellant should not succeed. The General Term of the Common Pleas affirmed the order of the General Term of the Marine Court, and directed a new trial in the Marine Court of the action. Thereupon the respondent, Salke, procured a writ of prohibition, directed to the Marine Court and Talcott, restraining the Marine Court from trying the action, on the ground that the General Term of the Common Pleas had no power to do other than direct a judgment absolute, and that an affirmance of the General Term order by the Common Pleas entitled the respondent to

The court should not by writ of prohibition | judgment absolute.

Thomas & Wilder, for applts. for interfering with the functions of R. S. Newcombe, for respt.. that tribunal, in this case, by a writ Held, That the writ of prohibition of prohibition, than there is to arwas improperly issued in this case, rest all its functions by similar profor the following reasons, that under cess. If the court is assuming to the authority of Gordon v. Hart- act without authority, the relator mann, 9 W. Dig., 293, there could be can protect himself by raising the no appeal from an order of the Ma- proper objections, and by exceprine Court, granting a new trial, tions, at the time the case is moved without the stipulation as required for trial, and by correcting the by Chap. 545 of the Laws of 1874; errors, if any, by appeal. His rights therefore, there being no effectual depend upon questions of law which appeal, the General Term of the may be presented, and all errors Court of Common Pleas had no affecting the same corrected in the power to render judgment absolute, ordinary proceedings in the action, and did not do so, and the legal without resort to a writ designed effect of the judgment of the Court for purposes foreign to the review of Common Pleas was to remand and correction of those errors which the case to the Marine Court for occur in the progress of the trial such action as is directed by the and decision of causes. order of the General Term of the latter court. II. The relator, if aggrieved by the judgment of the Court of Common Pleas, because of an irregularity of form, had a plain remedy, by application to that tribunal for the correction of the judg

ment.

This court should not interfere by prohibition while so simple and easy a remedy lies open to the relator. III. If there was no lawful appeal which could give the Court of Common Pleas jurisdiction, as seems to be the view of the Court of Appeals in the case cited, the case has remained, in legal contemplation, in the Marine Court, under and subject to the order of the General Term granting the new trial. That court is proposing to do nothing more than to proceed, in the discharge of its judicial duty, to a new trial of the cause, in conformity to the judgment of the General Term. There is, therefore, no more reason

The order should be reversed, and the writ quashed, with costs. Opinion by Davis, P. J.; Brady and Barrett, JJ., concurring.

MALICIOUS PROSECUTION.

EVIDENCE.

N. Y. COURT OF APPEALS.

Thaule, respt. v. Krekeler, applt.
Decided June 18, 1880.

Defendant caused the arrest of plaintiff for the
larceny of two unrecorded deeds, formerly
executed by plaintiff to defendant. The affi-
davit on which the arrest was made charged
the larceny in technical terms, and stated
the facts and circumstances. The facts were
proved true. Held, That an action for ma-
licious prosecution could not be maintained;
that the affiant was liable for the statements
in the affidavit, but not for the legal conclu-
sions drawn from them by the magistrate,

district attorney or grand jury.

Before a defendant in a suit for malicious pro

secution can be called upon to go into a defense the plaintiff must establish the want of