New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1859-05-26

Of September, 1857 made an order odca'iEg aad
s,t'in9 aside ne judgment If VIZ. iOpbf', toRoher
rim he eJccu.i0H and all prJccsdings t'eJ,0H' re
dAsvcr Of he C0rJ0ra.,0n, he siPndftoH ." Tgfs,
and he ord'r ofi m'ng NE rtpoI9 Tge'f ava u'-
recrg that another an-aer be- prepared oy inc tor,
pOrat.n Council within t"c"y ha!si !" ~ ~ ppi
IL. urccedi answer unle.s the =aii Controller WITH
in tfiriy days from this date .hall elect az ne may
oIlcialy and taxpayer AID corporaior or otber-
wise Oh behalf e bim-e and others, 10 he an org
ipa complain -et'ing forth such matters and making
such parties aud praying such relief IN The premises
a. be may be advised. See page -, Doc. No; !.
From this decision Mr.. L9wber appealed To me
General Tenn the Snpreme Court, where the appeal
was arsued by Mr. Whiting for Mr.. Flag aud Mes'rs
Curtis Moves ard ID. ID. Field for Mr. Lowber. On
the eth dav Of December, 1851, the Order "i Judge
Ro.eyeh was modtfcd aud an Order made to 'tand Ia
the place Of the order appealed from. -
That Order is 20 be found on page 10 oi Doc. No
ard 10 tls Order beg leave 10 call your e-pe's 81
attention. .
II directs that the answer and all subsequent pro-
cee(i,ps he set aside and vacated; pr"vide1, ne
Controller or any other taxpayer who may be SUD
..itutcd in bis place. shall within thirty day, aitrr 7l
vice Of a copy Of this order on the Controller, NE az
original complaint az toxpayer GorP'ami, u 18th
sucb matters and making such psrti-@ ara praying
such relief a. he may be advised, together WIN a
b,nd a. provided for-and in The neln Time thai an
1e st0ged1and if the action be commenced Proc'ea-
hrs NJ ne plaintG are stoyef until PM Jndgmeh,
rr vi1ed the Controller or plaintiff in such action
shall give security to plaintih IN the rnh o. 800
by bond with two sureiics - be approved by JUS
flee If hi. Court TO pay plaintiff all damages he may
ns,aip by reason Of the suit TO be commenced-the
damages to be a;certained by reference on summary
application. -, oo,o
merc.d shall be decided against the palntif III such
action then the answer and subsequent proceedings 70
this action and the judgment thereon sia s'dnu ~
full force If the answer and subsequent Pr"cce1uY
l., Tod. D. reyf I1f form ~
DdeQtnt sh0H Je So O2lEed hni The pl0tafV stMt re-
CORR the damages dudrdfd on hts etecp'thg GHd de,r
uing 10 lie pre,cm dCteHd0"ts r"rran'y decd ~ ne
1oim and Wtfh the covenants reqprtd by me 0gF"meM
0,ih he d, tndaatS SCI toTfh IN me complaint free from
oH incambfoHces crcept rs SCI firth IN satd 0gremth
and cohrcyang prJcof t0c thereto, eccfPt rs dtore-
said 7ic J0,m and modc ct ccccHto@ NJ sod derd 70
h. opplor Ly one # NE Jas'iCcs II n,s court. The
title 10 be deemed to he good and satisfactory in this
acton so far shall be pronounced 20 in the action
to he commenced under this order.
The opinion Of the Court ard Of Justice Peabody
dissenting thcreirom, will be found in 20 Barboms
Reports, 90.
That order stands in full force and efftc Mr.. Low
Der has appealed from the decree to the Court OF APP
p'als.
After said order was entered, a complaint was fled
with the following title: THE People of the state ni
"New-York, by Lyman Treman, their Attorney
"Gcneial, ard on the relation of Azariah 4. tlagg
"oorpora'or and taxpayer, &C., against Robert W.
"L0wbei.'
Complaint,
on fling sufficient undertaking, Justice lugraham.
the ;iCth January, 1879 granted al injunction stay;
ing proceedings upon the Judgment and execution until
the luther order Of the supreme Court
On the 18Th day Of February, an order Wa granted
by Justice C.elke for the plaintiff 10 show cause why
this injunction order should not be set aside ana va
Gated This motion wa argued before ,nslcc Dawes,
who denied the motion. Mr.. Lowber has appealed
from that oIdcr 10 the General Term of the Supreme
Court. From the opinion of Justice Davies, II is clear
hat n, brsl
Term had been brought, but the Judge suggested az
amendment OF the complaint. MI. Lowhei's COUNSEL
ave of opinion that the Judge had no power to make
such order, and this forms, believe the ground vi
their appeal.
Judge Davies in his opinion, states his copclusiohs
10 the effect Of the order Of the General Term, a.
follows:
csnn,t doubt the Of the General Term requiring
I'd orisnsl psil be- 6ed ano Srved within thr Day,
b.p complied nth aud ihs' tina. uoi,n having
nd subst queb diDfs Ia 'h- ctse oi Lo"r eess'
b, Mayer including .e juagment t. b. ". sae sa
the B,t scco'dns W s TERMS shd tae sumo De'
,ord,t Oily at oside and roedfsd"
Mr. l., Yb-r put in his answer to the complaint filed
unde, der Of the General Term, and on the 18TH
Of March 1855 gave notice OF motion to dissolve the
piur ion N cause. This M tioD was heard be1ure
Justice Sutherland and denied Oh day OF
49,. From this decision Mr.. Lowber has also APP
called , ,
The entire operations ~ Mr.. 1oGber stood controlled
by t decisions of the Supreu Court until the goth
u March, l,is, when the care, commenced under the
rider Of the General Term, was heard before Justice
lngi aham who the llth day of September, 1898,
deiyt red an opinion which ID herewith submitted, ois
IL siI tie complaint.
Js,,he Su,herauds opinion is submitted herewith.
In this opinion you will find complete statement OF
tn. several steps taken in the from the period
when Justice Roosevelt stayed proceedings until Mr.
Lowbers application to dissolve Justice lngrahans
iunciO ION bri,ie Ju tice Sutherland, on the complaint
hnd er in the cause.
Justice Sutherland refers to the order of the Gen
tral Tenn to the order of Justice Davies and to the
isnIss al If the plant by Justice lDgrahan In
his opinion he states that
I'll. order d III. General Term not only stayed al proceed
~ - und,i tie judgment LVwher the original action until
dei-Inusii f this action but 9Jfer tue d-r nina
hot osn. o. such dct,riDsti Of the sction any
fv,i LCiobT piled Nth The oHd tons oontai"ed IN The
9 S ace S t S hS' 2os I'D BE- es~%,ns 1d DE-
roed agnn the paintf in such aFon the judgment 0d' 70
sand IA tHH force
Again he says:
Tie fac, ,hSi has since been judicialy determined that
- oo.s rot Sft, IL. oTd.r of the Gen. raj Term"
Ia aloiher pait "f his opinion he states:
If tbs 'Id, d the General Tenn has iree nsdH'ag
conn ast TIE Pe-Ie snd F-eg in this action Mr. LocbT
'onH' proceed unde his udSnet until he la: ereeU'ed se
ro,,0hy d,od and has teen GpprOred BY Justice Of thus
" CONT according 70 the order
Not~ thstanding ttia solemn decision of the Supreme
Court, Nj. LoWber has proceeded.
On the 23d Of September, 1853, an order dismissing
the plant and injunction granted Hereunder was
eLierd, Hid the judgn tnt roll filed, aud ON the 2if,
notice Of erny Of Judgment reryed on plaintiff a,t"-
MY; ard On the 18th, notice served on the Sheriff,
aho lie was directed To proceed on the execution.
On the 18th da, of October last, the personal prop
ery If the cit, was sold by the Sheriff ana $50 900,
he proceeds If said sale, were applied TO the part
,a,isiaston Of the judgment aud costs. The Mayor of
the c!'y ID. f. lieiIaInl and the Chamberlain tAN;
S., Ut, aGvuuced the moie, 10 save the pictures and
fun uur. il the City Hall from being sacrificed Gu
tie cath If December, 1855, the real ate Of the
City was sold at public auction, and the proceeds
Their epIl I'd to the satisfaction Of the Judgment aul
cOss. Certificates Of sale have been issued by the
Sheriff. They embrace property valued at sevrral