New-York daily tribune., 1858-10-12
THE LOwBER CAsE-DECISIoN.


SUPREME -cn'MaEEs-oer u.-Beiore Judge
Robert W. Lowber agt. The Mayor, &C.. Of Ncw-lork.
The plaintiff aving recovered a Judgment against
the defendants for land wich ne agreed to sell hem
issued an execution to the Sheriff.
Wile such execution in the bands of the Sheriff,
he has applied to sue under the 29th section of the
code upon an affidavit stating, among other things,
the recovery of the Judgment and issuing of execution,
and that Mr. Stout the chamberlain of the city, has
money in his hands belonging to, and the property of
the defendants 10 amount exceeding 5000 ZOO, and
asked for an order directing the Chamberlain to pay
such morey to the Sheriff in discharge of the judgment.
Ii is objected on the part of the Chamberlain that
such proceeding cannot be taken against debtor OF
a corporation.
| had occasion to examine this question in Curtis
apt HARRISON ~ How $50, some time SINCE and came
to the conclusion that, although the 292d section was
not applicable to corporations as debtors, still this
sction nigh, be resored to for the purpose of reaching
property in the hands of third persons, belonging to
corporation against which an execution had been
issued to the Sheriff. refer to the opinion in that
cause fer the reasons on which that decision was
based. The case of Sherwood agt. The Buffalo and
New-York Central Railroad Company, IL How. lj6,
holding the Of that proposition, was not then
published. BY that decision of the General Term of
another district it ia held that the 29ith section s
section and the latter section cannot be resorted to
against corporation, the same rule must govern as
TO the 29ith section.
The reasons given for this decision are two:
First That the 29ih section may be conducted
..Ls~. - e, the deOtor syc2y,l,
conducted the section would open the door to injustice
and fraud by enabling creditor To get payment for
Judgment which the debtor had previously paid.
The simple answer to both these objections il, that
the Justice may require notice to be given to the
debtor before any order made and under section 9
afi.,n. Of fla al
would be obstacle to the preparation of similar
fraud IT, as is stated after such examination proceed
ngs may be instituted under the 29ith section, with
ont notice to the debtors because in such case the
examination would not be brought 10 the knowledge
the magistrate.
can see no reason to change the opinion heretofore
expressed that this section may be applied to the case
OF corporations well of individuals. IL affords an
easy and not expensive mode of reaching the means
of paving execution, which can as readily be used
against a corporation an individual aud there Is no
more to anticipate fraud IN the one case than IN
the other.
The Judge may require notice to be given to the
Judgment debtor, whether corporation individual
land such is, | understand the nvariabe practice in
in this district, and the debtor will then be amply
protected as he coud be on a personal examination.
There is reason why corporation that viii not pay
just claim should be treated with any enency
in enforcing laws than an individual.
feel, however, some hesitation IN adheriug to these
views against the opinion before referred 10 o the
General Term of the Eighth District, and am relieved
dlsDOSlng oi the TINS point DF tnt views
/ entertain Of the other questions in the motion.
This section only applies TO persOn having proper
ty of the Judgment debtor, or who is indebted to
him, &c.
And the 297th section only allows the Judge to order
the property of the Judgment debtor in the hands Of
himself another person, 10 be applied to the salts
faction Of the judgment.
II becomes necessary therefore to inquire how far
the examination Of Mr.. Stout d-closes shat he holds
any property belonging to the defendants. The I'M
poitance of this inquiry must b. apparent 10 any one
conversan with the vast interests of the government
OF this city; and hesitate abou expressing opinions
in regard TO IT, arising does on this proceeding,
which is not calculated to allow that thorough arga-
ment and examination which could be given 10 II m
different form of proceeding. AZ, however, the de-
ci-ion Of this application must rest upon the decision
OF this question, see no way 10 avoid it..
IL the Of Baily agt. The Mayor, &C., of New
York 6 Hill, J3ll, ChiefJustice Nelson notices the
distinction between the private rights liabilities ana
duties of municipal corporation, and the powers ana
duties conferred and exercised for the public benefit
For the one they are held responsible individuals
or private corporations; in the discharge of the other
they 20 be- considered a. having received the gram
in a public municipal character. 80.
The same distinction must exist a. 70 ts hA6ihtyi
and a. 10 the property in the charge Of the ofcers
The private property of the corporations undouoteo1
liable for rs debts and such liability may be ehlV'esa
in the ordinary mode of collecting debts. nut shs
question is very different when 1t - inquirer
the property belonging to the public ana hed pY inc
municipal authorities for public purposes 'an " "P
pl.eI 20 lDe pay tHitnt OF tucl
The examination Of the Chamberlain shows thet lh9
moneys in hs hands are the proceeds Of bonGa is'Iel
in anticipation of in part, and a.,o OF moneys
collected for the taxes Of the year and that ne mas no
other property in his possession belonging 70 the Pl,y
have no hesitation 10 the conclusion 70 y oney COZ,
eted bv tax i not the propery OF the defendants aud
does not come within the terms used Il this e'l.
The tax law gives authority 20 raise Dy YAK speJa1
amount not for their purposes es Corporation ol'
to be applied 70 the necessary expenses III tue
ment oi this city, and which moneys the ISgsI'u'e
would have been compelled TO raise and dlsou5'e
they had no, delegated that power to another o9dy.
In no sense IS the money TO be raised made tae
property Of the defendants. II still remains tse prop
ery of the people 10 be applied to the sPecne oneea
for which IL appropriated, and guarded by the sriG
est proyisons OF law far rs 20 nhlct punish
meut for any appropriation OF those funds 10 the oo
cots Of the CORPORATION different from those which tns
Legislature ha se designated. ,os
Thee ,iews have been heretofore expressed oy me
in the ouse Of Green egt. the Mayor, &C., % Wv"
York IS Abb. Pr l0I, and were adopted IN th' ''''0
in Abb. Pr, -tS. an a.,
In TINT css, il is iIue, the question arose ble
muirer a. n Iaait.r Of defense 10 r recovery, -
-. J., ,f.fttfN IA Judgment creditor. d. AZ