New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-09-07
THE LOWBER JUDGMENT.
THE LOWBER JUDGMENT.
SUPREME CoURr-SrEcIAL TtsN-seP~ o-be'o's ~,


r. y
srpRrnE coURr-srrcI.L Trsx-sepe- S-Befo,s Is,.
Robert W. Lowber ast The mayor e'a.
In this case the Judge this morning rendered hs
following opinion;
PEABODY. Jan order requiring Mr.. S.sut, the
Citv Chamberlain. TO appear before the Court, or
Jus,ce thereof apd answer concerning the properyO
~. attendants in his hands, has been obtained and
served on him. and in the return thereof he appear
.nd moves 10 dismiss the order. The defendants
md ment ebtors of the plaintiff who, having issued
execution on his judgment, has procured this order
nnfer section 994 of the CCde.
s,.v Of nroceedinrs on plaintiffs execution had
been obtained before this order, and Mr. Stout moves
10 dismiss il. :, .,..
Cirsi Because it was procured in violston Of
that STAY This order is not IN VIOLATION o. inc say
which. by its terms is limited 10 proceedings on ne
frecptoR This is not the execution and tne orcer
staypg proceedings in il does not prevent proceedng
TO enforce the Judgment other than on the e1ecutor
II STAYS no proceeding TOR the collection or enforce
ment OF the Judgment other than those on the eIeca'
tion.
Second, Because the term Judgment debtor, used
in this action does not include corporations lie the
defendant in the suit. This defendant IS municipal
corporation; and the same language, judgment
Judgment debtor" used in section DO, has been
held TO include only natural persons, and not 10 en-
brace corporations when they are euch judgment
debtors But the ground for this construction zee
tion 2q2 is not that the term judgment Is not propefy
epplicable to a corporation. if it have judgment
40 sinst IT, or such corporation 10 Judgment 3eo'e
but because section 292 which relates 70 tue present
examination an oath of the debtor, cannot IN pracce
be enforced against an artificial being OF legislative
creation, for such debtor cannot take an oate.
CORPORATION il OF susceptible of the application OF 1nst
REMEDY by which the creditor lie authorized 10 search
the conscience OF his debtor. ,r.,
No objection Of the kind occurs " the APP LOCATION
for the examination of debtor Of q Judgment debt,
the order provided for in this section be IN the case OF
a corporaton being the udgment-debor, and 1t is sp
plcable as readily a. where the judgment debtor pro-
fesses 10 be natural person.
Third. That Mr.. Stout Icing an officer OF thn
city, and having whatever FUNDS he may have OF the
city as its treasurer is not liable to this proceeding;
that his possession is the possession of the city, as
that of clerk Is the possession of his employer But
his possession is not entirely like that of clerk who
keeps the money in his MASTER premises in his drawer
or safe TO which the master has constant access and
the custody of which is with him, primarily. The
clerk has no custody adverse to his MASTER and none
except in subordinaton To him; II he has any Other
custody or possession. he too like the treasurer Of
corporation would be liable TO this proceeding II
he as clerk have in his own possession property Of
hi. MASTER he too may be examined under this section
Motion to dismiss the order denied.