134 N.Y.S. 174 | N.Y. App. Div. | 1912
The relator has been granted a peremptory writ of mandamus directing the Union Ferry Company to permit him to examine the books of the corporation. The petition of the relator is met by the opposing affidavits of the officers of the corporation, familiar with its affairs, and the relator, standing upon the pleadings, is in the position of a demurrant, admitting all of the facts alleged by the respondent to be true, but
This appears to be the full extent to which the relator, or any one in his behalf, has made any request to the corporation for information as to the condition of its affairs; there has been absolutely no suggestion that the relator desired to know anything about the retirement of the corporation bonds until the filing of the petition demanding a writ of mandamus. There was no rejection of the financial statement made by the treasurer of the corporation; no objection that it did not conform to the requirements of the law in that there was a failure to verify the same. On the contrary, the report seems to have been retained by the relator and others, by their attorneys, and the defect in this regard must be deemed to have been waived. The statute provides that this statement, when made, shall be open to the inspection of any stockholder demanding an examination thereof, and that only one such statement can be required during any one year.
It was not until the petition in the present proceeding was executed that there was any suggestion in reference to the retirement of the corporation bonds. In this petition the relatoi
It may he that this statement is open to the objection that it does not state whether the bonds were purchased above par at a time when they were selling below par in the open market,
The order appealed from should be reversed.
Thomas, J., concurred; Jenks, P. J., and Cabb, J., concurred on the ground that the petition does not disclose a proper demand for the information sought; Burr, J., not votmg.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.