73 N.Y.S. 69 | N.Y. App. Div. | 1901
The plaintiff brought three actions to recover the penalties provided by section 53 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688), as amended by chapter 384 of the Laws of 1897, recovering in each action. The questions presented upon this appeal relate to the construction to be placed upon the statute, which reads as follows:
“ § 53. Stock books of foreign corporations.— Every foreign stock corporation having an office for the transaction of business in this state, except moneyed and railroad corporations, shall' keep therein a book to be known as a stock book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof, and the. amount paid thereon. Such stock book shall be open daily, during business hours, for the inspection of its stockholders and judgment creditors, and any officer of the state authorized by law to investigate the affairs of any such*510 corporation. If any such foreign stock corporation has in this state-a transfer agent, whether such agent shall be a corporation or a. natural person, such stock book may be deposited in the office of such agent and shall be open to inspection at all times during the usual hours of transacting business to any stockholder, judgment creditor or officer of the state authorized by law to investigate the affairs of such corporation. For any refusal to allow such book to-be inspected such corporation and the officer or agent so refusing shall each forfeit the sum of two hundred and fifty dollars, to b& recovered by the person to whom such refusal was made.”
The Island Mining Company, one of the defendants, is a Michigan corporation, and the defendant Paul is its secretary, and the defendant Todd its president. There is a dispute as to whether the-defendant company has an office for the transaction of business in this State within the meaning of the statute, but it is not questioned that Paul and Todd have possession of the books, papers and other property of the corporation at an office at 45 Broadway, in New York city, which office is occupied by the Quincy Mining Company,, of which the two said defendants are officers, and where whatever of business the defendant company has to do is transacted. On the morning of April 25, WOO, the plaintiff, a stockholder, demanded of Paul, the secretary, at this office, 45 Broadway, that he be allowed to inspect its stock book. This the defendant Paul refused to do. At a later hour in the day the plaintiff again appeared, bringing a. witness with him, and demanded the book, and at this time called the attention of the defendant Paul to the fact that he was incurring-a penalty by refusing to comply with the demand. He still refused to permit the plaintiff to see the book. This demand was repeated on the following day, and was again refused. On' April twenty-seventh the plaintiff again returned to the office, and finding the-president, Todd, there, made a demand upon him, and the defendant Todd refused to allow him to see the stock book. Having made these several demands, and been refused his rights under the statute, the plaintiff sued Paul for three penalties, or $750 ; Todd for one-penalty, or $250, and the company for four penalties, or $1,000. The three cases were tried together before a referee, that against. Paul being tried first, followed by that against Todd, the testimony in the case against Paul being adopted by stipulation in the case-
The principal point urged by the appellants is that the Island Mining Company was not a corporation “ having an office for the transaction of business in this state,” within the contemplation of the statute, and, therefore, that there can be no recovery. We are convinced that the evidence is sufficient to support the judgment,, and that the Island Mining Company, a foreign corporation, had an office for the transaction of business at 45 Broadway, New York city, at the times mentioned in the complaint. Mr. Paul testifies: “ I think it was that day or the next he (Mr. Cox) asked me if that was the office of' the Island Mining Company and whether the books were there. I told him it was the office of the company, and that the books were there.” This is corroborated by the defendants’ attorney, Mr. Scharps, and Mr. Paul further stated that the company has no other office anywhere, and that all of the business that the company did was transacted at 45 Broadway. The question here presented is not whether the Island Mining Company had its capital employed in this State, or was actually doing business, but whether it had an office in this State for the transaction of business. When the officers of that corporation, admitting that it
Were it necessary to sustain the judgment in the present case, it might be pointed out that the having an office in this State for the transaction of business is not necessarily a jurisdictional fact. Prior to the amendment of the Stock Corporation Law in 1897, section 53 read as follows: “ The transfer agent in this state of any foreign corporation whether such agent shall be a corporation or a natural person, shall, at all times during the usual hours of transacting business, exhibit to any stockholder of such corporation, when required by him, the transfer book, and a list of the stockholders thereof, if in his power to do so, and for every violation of the provisions of
The appellants then urge that there can be no recovery against Paul or Todd, two of the officers of the company, under the statute, because no duty is imposed upon an officer of a foreign corporation to exhibit the stock book. The statute clearly evinces an intention, not only to impose a penalty upon the corporation itself, but upon
The suggestion that there can be no recovery against Mr. Todd because the demand was not made during business hours, does not seem to have been made upon the trial, and, if it had been, it is without force. The “ usual hours of transacting business ” are not
The appellants urge that the statute does not provide for the cumulative penalties which have been recovered, but in this we are not able to agree. The language of the statute, that “ for any refusal to allow such book to be inspected, such corporation and the officer or agent so refusing shall each forfeit the sum of two hundred and fifty dollars,” clearly evidences a design on the part of the Legislature to give the plaintiff a remedy for every denial of his rights; at least for every daily denial of such rights. Johnson says the word “ every ” means each one of all, and the same great lexicographer defines “ any ” to mean “ every,” and says “ it is, in all its senses, applied indifferently to persons or things.” (Purdy v. People, 4 Hill, 384, 413.) The court in the same case, speaking through Senator Scott, say: “ However, if we apply the rule to this case, and seek to ascertain the meaning of the words by examining the context, it will be found that in every section of the Constitution where the words £ every ’ and ‘ any ’ are used, it is in the sense defined by Johnson. The word £ every ’ occurs fifteen, and £ any ’ twenty-five times in the Constitution, and in no instance is either of them used in a limited sense, as meaning some ; but, on the contrary, they are invariably employed in the sense of all, or each one of all? (See, also, People v. Clark, 7 N. Y. 385, 390; 2 Am. & Eng. Ency. of Law [2d ed.], 415, 416, and authorities cited in notes.) The use of the word “ any ” instead of ££ every ” in the clause giving the penalty, does not, in our ■ opinion, limit the scope of the statute, and no reason suggests itself why the plaintiff’s right should be limited. The statute makes it the duty of the corporation to have the book within reach of its stockholders daily; the stockholder has a clear right to see the book every day, and it may be important for him to have this privilege. The denial of this
The statute makes no provision for interest, and we are inclined f o the view that there was error in the award of interest. (16 Am. & Eng. Ency. of Law [2d ed.], 996, and notes.) The amount involved in interest is of no great importance, and involves no question going to the merits of the case, and we may properly, within the provisions of section 1022 of the Code of Civil Procedure, modify the judgment by striking out the award of interest.
The judgments should be modified in accordance with this decision, and as so modified should be affirmed, but without costs.
Goodrich, P. J., Bartlett, Hirschberg and Jekks, JJ., concurred.
Judgments modified in accordance with the opinion of Woodward, J., and as modified affirmed, without costs of this appeal to any of the parties.