107 N.Y.S. 188 | N.Y. App. Div. | 1907
This appeal is from an order directing that a peremptory writ of mandamus issue commanding the appellant, its officers, directors, agents and servants, and each of them, forthwith to exhibit to the relator at its office in the city of Mew York, the stock book of the appellant, and to allow the relator, during business hours at such office, to inspect and make extracts from such book, and to copy therefrom, if he so desires, the names and places of residence of its stockholders and the number of shares of stock held, by them respectively. • ’
The appellant is a -foreign corporation organized under the. laws of the State of Delaware. It never applied for. a license to do business within the State of Mew York and in fact does no business in this State except that it maintains an office in the city of Mew York for the convenience of its stockholders in transferring stock and also for the convenience of certain of its officers. Its entire capital stock consists of 1,000,000 shares of the par yalne of five dollars each. The relator on- the 25th of March, 1907, had transferred to him ten shares of such stock, and two days later . he appeared at the office of the corporation in the city of Mew York and informed the person in charge that he was the owner of a certain certificate which he then exhibited and demanded permission to inspect the stock book and make extracts therefrom. The person in charge of the office informed him that the stock book was open at all times for the inspection of stockholders, but that he would like to take advice as to whether extracts could be made from it. ' The relator thereupon left and returned the following day when the same information was given him. A short time thereafter he brought two actions in the Municipal Court of the city of Mew
It also 'appeared from papers used upon the motion that the corporation notified him, in writing, prior to the institution of this proceeding, that the stock book was open for his inspection, and if he would state i.n writing his reason for wanting to make extracts
Upon the foregoing facts I am of the opinion that the application for a peremptory writ of mandamus should have been denied. It is to be.noted that the statute does not contain any provision as to making extracts from the stock book. The language of the statute is: “ 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 corporation.”. The omission of a provision in this section as to making extracts is somewhat significant, when the section is read in éonnection with the one relating to the inspection of a stock book of a domestic corporation. That section provides: “ The stock-book of every such corporation shall be open daily, during at least three business hours, for the inspection of its stockholders and judgment creditors, who may make extracts therefrom.” (See Laws of 1892, chap. 688, § 29, as amd. by Laws of 1901, chap. 354.) The statute, therefore, under which the relator claimed the right to make extracts, did not confer upon him specifically such right, but if it be assumed that the right of inspection which the statute did give him carried with it the right to make such extracts as would enable him to retain the information disclosed by the inspection (People ex rel. Lorge v. Consolidated National Bank, 105 App. Div. 409) then the application should have been denied because it affirmatively appears that his desire to make extracts was for an ulterior purpose and in no way connected with his interest in the corporation itself or its management. There is no express provision of law authorizing the issuance of a writ of mandamus to enforce the provisions of section 53 of the Stock Corporation Law, and when application is made under that section, whether such writ will issue rests in the sound discretion of the court to which the application is made. (Matter of Steinway, 159 N. Y. 250.) When the court can see from the facts presented, or it can fairly be inferred therefrom, that the application is not made in good faith for the protection of the applicant’s interest in the corporation, but for some ulterior or improper purpose, then the writ should be' refused. (Matter of Taylor, 117 App. Div. 348.)
The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham and Scott, JJ., concurred; Patterson, P. J., concurred in result; Houghton, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.