New-York daily tribune., 1859-06-02

the Controller could have taken no moasutcs !"
omen the Judgment except through the agency oil
The CORPORATION Counsel year sgo these ques-
tiops might have been answers, d in the negative,
hut at the last session Of the Legislature an act
was passed. of which the following are sections;
, whn,yer the Cor ,roer ~ be said city Cew York; ssa
have ra t, believe that any dgmeus now OF record sxains
Mayor Aldermen and Common ay oi ts m ss, bar.
been OF by collision Or founded IN ifsao he
, ~. same and % Use re Ofthe aid Mayor
Aicrer Comonaliy and 10 employ e0un'H or 'u'A P
IS Til, &C. ..al ake eSes; Immediately"
Can language be plsnerl The Controller Is
81 authorized" in certain cases, "and required TO
take all proper and necessary means to open
irdgments. and to "use the name OF the Cor
poration, end "employ counsel for the pur-
pose. The law was passed with an express view
TO cases in which, through The negligence or what
ever you please to call it, of the legal officer OF the
CITY Government, unrghteous judgments had been
obtained against the Corporation. 1t was deemed
proper that, at least during the Eusteed regime,
the custodian of the city treasury should have
power to protect it egainst fces of his own house
hold. The experience Of the last year had rem
dered the passage of such an act necessary. Un-
less the provision quoted means what it seems on
the face of il to mean, il is useless, since it con-
fers no new authority upon the Controller, who
could always commence actions of any kind with
,be leave and by the aid of the Corporation
Counsel
The only remaining question is, whether this
was a case calling for the exercise of the power
newly conferred upon the Controller. Mr. Nc
Keon, who made searching examination Of the
facts, at the request of Mr. Haws said that the
money peed not aud ought not to be paid without
further appeal to the Courts. And a very brief
recital of the facts will show that the Controller
has good reason to believe" that the Judgment in
question was-not only " founded in fraud but
was " obtained" by means that look very much
like " colluson.'
The deed. by which Mr.. Lowber pretends 20
give title 20 the city, in its terms, covers properly
of which two-thirds belongs to the State as hiss
been decided by ihs Superior Court For the pur-
chrse of this property, osteusiby for a marlo
Site the Common Council appropriated Sl96,OOO,
and Mr. Lowber presented his deed, approved BY
Mr.. Busted, to Controller Flagg. But that faith
Jul officer declined to pay the modest sum de-
manded. His refusal forced Mr.. LOwber to com.
mence a .uit against the city which the Corpora
ton Counsel made feint of defending. Instead,
however, of having so important question: in
vovipg so large an amount of money, adjudicated
by competent tribunal Mr.. Busteed consented to
refer it 10 Mr. Daniel f. Sickles. Without Bus
teed's corsent no referee could have had Jur's'
diction, even the Supreme Court being incompe-
tent to order reference in of this descrip-
ton. Nr. Sickes reported in favor of Mr.. Lowber,
and from that decision Mr.. Busteed never ap
peal,d.
Seeing that the law officer of the city was not to
be depended upon, Controller Flagg sought, as
tax payer, to have the judgment set aside aud his
preliminary application was granted by the Court,
in the face of the opposition not only of Dir.
Lowber, but of Mr.. Busted, acting for himself
and for majority of the Common Council the part
of dog in the msnger. While this case was pend
ing. however, a Judge of the Supreme Court,
sitting at Special Term, decided in the case OF
Eoosereit against Draper that taxpayer had no
right to sue in his own name on behalf OF the city;
and this decision, although given by country
ton of several previous decisions Of the Supreme
Court Of this District, allowed to control the
Lowber case. Upon the strength of Judge Bal
CONS hasty opinion, Mr.. Flagg was ruled out of
Court, the decision in favor of Mr.. LOwbers claim
became judgment, execution was issued upon 1t,
and he property of the city was sold.
We have refrained from giving dates or from
citing the numerous and conflicting orders OF the
Supreme Court, which are not essential to an un-
derstandipg of the substantial facts of the case be-
cause it appears with sufficient elearness from the
bare outline given, that judgment 'founded IN
fraud" on the part of the plaintiff, and obtained
through the laches Of, if not by "collusion' with
the Corporation Counsel, had been obtained
against the city, which Controller Haws might
have taken measures to reverse instead OF pay
ing S24O, 900 out of the City Treasury, as he did
on Tuesday.