270 A.D. 440 | N.Y. App. Div. | 1946
Lead Opinion
Plaintiffs appeal from an order requiring them to post security under section 61-b of the General Corporation Law, and defendant Macfadden Publications, Inc., appeals from so much of the order as permits plaintiffs to make application to vacate the order in the event they effect a joinder in the action of stockholders holding 5% of the outstanding shares of any class of stock of the corporation or shares having a market value in excess of $50,000. Defendant corporation also appeals from an order under article 78 of the Civil Practice Act, granting plaintiffs’ motion for an examination of the list of stockholders of the corporation.
The action is a derivative stockholders ’ action. Plaintiffs own approximately 4/1000ths of 1% of the stock of the corporation,
Plaintiffs ’ appeal from the security order raises only the question of the constitutionality of section 61-b of the General Corporation Law. Defendant’s appeals raise questions of the permissibility of including in a security order a provision for vacating the order on joinder in the action of additional stockholders, bringing the amount-of stock held by plaintiffs up to $50,000 in market value, and the permissibility of granting plaintiffs an order for the inspection of stock lists, after the institution of the action and award of security, for the purpose of enabling them to solicit and enlist enough additional stockholders as plaintiffs to avoid the security order.
This court has previously upheld the constitutionality of section 61-b of the General Corporation Law (Shielcrawt v. Moffett, 268 App. Div. 352, reversed, without passing upon the constitutionality of the section, on the ground that the statute had no retroactive effect, 294 N. Y. 180). On plaintiffs’ appeal, we adhere to our holding in Shielcrawt v. Moffett (supra), that the statute is constitutional.
Section 61-b provides that in any action instituted or maintained in the right of a corporation by holders of less than 5% of the outstanding shares of any class of the corporation’s stock, unless the shares held by such holders have a market value in excess of $50,000, the corporation shall be entitled at any stage of the proceedings before final judgment to require the plaintiffs to give security for the reasonable expenses which may be incurred by the corporation in connection with such action. The section further provides that the amount of such security may thereafter from time to time be increased or decreased in the discretion of the court having jurisdiction of such action upon a showing that the security provided has or may become inadequate or is excessive.
As the order for an examination of the stock book was sought and granted only in aid of the invalid provision of the security order, it must also be vacated. While section 10 of the Stock Corporation Law gives stockholders the right to inspect the stock book of a corporation, the court may consider the purpose of such an examination on an application for an order under article 78 of the Civil Practice Act, and may, in its discretion, deny such an application where the purpose is not consonant with law, the business of the corporation or good faith. (Matter of Coombs v. Edwards, 280 N. Y. 361, 364; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464, 469.) As the purpose here of soliciting stockholders to join as plaintiffs to vacate a security order is untenable as a matter of law, the examination should be denied.
The order granting the petitioners’ motion for an examination of the stock book of the defendant corporation should be reversed, with $10 costs and disbursements to the appellant, and the motion denied. The order granting the defendant corporation’s motion for security should be modified by deleting therefrom the provisions relating to the joinder of additional stockholders as parties plaintiff and as so modified affirmed, with
Dissenting Opinion
Insofar as the constitutionality of section 61-b of the General Corporation Law is upheld, I agree that this court is bound by its decision in Shielcrawt v. Moffett (268 App. Div. 352). However, in all other respects, I dissent from the majority opinion.
The provision of the order in the action granting plaintiffs permission to vacate the order for security if within sixty days additional stockholders joined plaintiffs to a number sufficient to meet the requirements of the statute, was proper and in accord with the purpose of section 61-b. It was not the intent of the Legislature to withhold from an owner of small stock interest, a fair opportunity to show merit in his law suit by obtaining the joinder of other stockholders so as to reach the minimum standard set forth in the law. The statute is as fully met by such joinder of additional shareholders after the institution of the action as it would be by a joinder prior to its institution. The disposition made at Special Term, in the light of all the circumstances, is a wholly reasonable one and carries out the spirit of the legislation as indicated in Governor Dewey’s memorandum appproving the bill, in which he said: “ Even if the stockholder owns only a tiny percentage or only $5.00 worth of stock, it still should be simple to bring an action without putting up security. If his action has any merit at all, it should be easy enough to interest others who do hold at least 5%, or stock valued at $50,000.” (Emphasis ours.)
The order in the special proceeding granting an examination of defendant’s stock book was also proper. In addition to the common-law right given to a stockholder in a proper case to compel the inspection of the general books of the corporation, by statute an absolute right is given to inspect the stock book. (Stock Corporation Law, § 10; Matter of Steinway, 159 N. Y. 250, 264; People ex rel. Rottenberg v. Utah Gold & Copper M. Co., 135 App. Div. 418, 419; People ex rel. Callanan v. K., etc., R. R. Co., 106 App. Div. 349, 350-351.) It is not denied here that petitioners are qualified stockholders and that a demand upon the corporation’s directors for the inspection was made, which met with a refusal. The examination desired did not encompass “ a business or object other than the business óf the corporation ”. (Stock Corporation Law, § 10.) A stockholder should not be denied the statutory right to examine the stock book of his own company where the avowed purpose of the examination
The orders should be affirmed.
Martin, P. J., and Townley, J., concur with Peck, J.; Glen-non and Cohn, JJ., dissent and vote to affirm both orders, in opinion by Cohn, J.
Order granting petitioners’ motion for an examination of the stock book of the defendant Macfadden Publications, Inc., reversed, with $10 costs and disbursements to the appellant, and the motion denied. Order granting the defendant corporation’s motion for security modified by deleting therefrom the provisions relating to the joinder of additional stockholders as parties plaintiff and as so modified affirmed, with $10 costs and disbursements to the defendant Macfadden Publications, Inc. Settle orders on notice. [See post, p. 840.]