New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-09-11
THE LOWBER CASE.

At IL o'clock yesterday Mr.. Justice Roosevelt re-
suned the hearing in the matter of the application to
open the judgment granted in favor of Robert w.
Lowber against the city, The question pending at the
adjourn ment of the Court Wednesday was as 10
TIE power Of TIE Court TO entertain motion made by
party not the attorney of the record. On that Judge
Roosevelt delivered the following decision:
motion is made on behalf of the Controller, as the
Chief financial officer Of the city, and es citizen aud
Taxpayer, eLd of the members of the corporate
booy denominated the Mayor, Aldermen and Com
monaliy, TIE ultimate of which in effect Is to obtain
perpetual stay proceedings on Judgment for about
S2GU GEO. entered uD he ia substance alleges, by
Qu0 oIiession without any just or real cause OF ac-
ton against the city.
Two preliminary objections are raised: First that
the presiding Judge is not holding Court anc sec
ondy that the applicant has no standing in Court.
The answer 10 the first obj con IL that by the AUST
section of the Code it is declare that every applicant
for order is notion and that motion, 10 the FIRST
judicial District with one exception tWnch lnls L,
not may be made to Judge or Il Justice out OF
Court"
AS to the second objection, il is contended that the
Controller whether officially or individually, csrnot
be ho ard on mere afidlvs; that lie must file reg
ular formal bill of complaint, and that such bill must
be filed befa OF all other taxpayers as well as
himself.
Whether person no: direct party 10 a confessed
Judgment but complaining of It's Injurious operation
on his ntere SITS shall be beard summary Inior nal
efiidavits be put 10 the more tedious remedy OF
bill in equity depends according to the settled prac.
tce of the COmt upon the special circumstances oil
each particular case, TO be aojudged oi aer tue a'
davis OH both sides have been read.
The ore usual course in modern tunes, especially
in this State has been to grant the sane relief on mo-
ton as might be obtained on formal suit Johns. X.
1911. , KEENAN, 2l5.
II the facts can be sufficiently ascertaned from the
afiidayts a duplicate s6it Is unnecessary. But It on
the papers presented the facts are involved IN doubt
and contradiction the Court may either order refer
ence where cross-exa1inatOn OF the witnesses can
be had or leave the parties 10 formal OH oil com
plant with its consequent pleadiDg. issues and ria
bv Jury or Otherwise, a. the law may require.
10 determine therefore the course TO be taken II 10
obvious that al the papers must hrst De read
In conclusion Judge Roosevelt said, in addition to
his written decision think it s due to both parties,
considering the allegations made by both parties that
the afidavits should be read, and that the charges
there made should be promptly answered without fur.
ther delay although they may not end in hna deter
mination Of the ultimate question on this motion.
would add that the general practice of the General
Term in this District and particularly during the pre-
siding iudgeship of Mr. Justice Mitchell, has been to
entertain preliminary objections, and not to dispose of
them until the whole case is heard in other words to
hear the at large, and without prejudice to the
preliminary objection, TO have disposed of the whole
together, without hearing two arguments; and l will
also observe before going with this case, that it
wbe better for both parties to remember that this Is
a court of justice and not political meet1g-athcugh
ell election may be near at hand-end for counsel to
copfne Themselves to discussion, bold discussion
Of tie facts and not to be dealing in epitbes which
are not necessary and which will only to rritate
both sides without in the least advancing the interests
Of ether side
Nr. Whitipg-Thers will be no danger of that, ss
the Counsel of the Corporation is not here.
Mr.. Whiting then proceeded to read the aidavts 10
behalf Of the Controller, which were published in
TIE TBiBusE some days since. These being con.
GUIDED
Mr. Field proceeded to read the following aflidavits
in behalf of Mr.. Lowber
City and County Of Ner- FORK, ss.-Robert W.
Lowber the ssd city pntf in the .boveeut,ed action
b. ing duly sworn, depes and That the day Ct
Msrh last this depor called upon ASAri.h C. Flag ESQ
Controller OF the City Of New York office Of tee said
Of the said city, who member Of the dr Broth
Thu, mi, deponent and there exhibited said Coz
whch had xecufed t. the defend BY
ned aud forth il the
,;nt In mi, sc,on with the certificate Of the Corp
Coru,e therrupou nded teseth-r with copy OF the
OF Council which passed the Board Of
Aldermen on the 18Th Of February ' and the certificate Of
W. Counsel 10 the Corporation stating thai he had examined
~, title the property and approving the same also mentioned
and s,t forth tho complaint ana $50 poseu 70 the
"A r. ntroer TO deliver the ~ him. sad al the ts
rrour.ed the Controller TO TO h TIE
money .Ius.ed the said deed and directed to BE- pi IN
and b The ,sd resolutions that the s<d Cenosr
tot The .ad papers and ser examining hsn sad AID stated
10 s he the said Controller nsa not say
10 bis which tho same aod asa 90
% issus tss TO tsiss tnoDey up'n' "" u