| N.Y. App. Div. | Feb 15, 1899
The order appealed from commanded the defendant, who is the-secretary and treasurer of the J. H. Gunst Disinfecting Company,, to produce the-stock book of the company and to allow the relator,, who is its president, to inspect it and to make-extracts therefrom. It seems strange that there should be a controversy upon such a subject. The president of the company is clearly entitled to examine its books, and the secretary should only be too willing to permit him to do so. And yet the defendant opposed .the relator’s application below, and now appeals from an order directing him to permit the inspection. We quite agree with the defendant that, if any material fact in the relator’s papers was denied, a peremptory mandamus-should not have been granted. That is, undoubtedly, the rule. But, upon a careful analysis of the affidavits pro and con, we find no such denial. There is a mass of matter in the respective affidavits, partly irrelevant and partly argumentative, which has no real bearing upon the application. It is, for instance, quite immaterial whether the>
The question, then, is, did the defendant refuse to permit the relator to inspect the stock book ? The relator avers a demand and refusal, while the defendan t plainly evades that allegation. He denies a great many other things — unimportant in themselves—but he does not deny this particular averment. To illustrate, the relator says that, on the 6th day of January, 1899, and daily since that time, he has frequently demanded that the defendant produce the stock book for his inspection. The defendant denies this allegation in ipsissimis verbis. The denial would be true if the relator had made the demand once or twice since the sixth day of January, but not “frequently.” The relator further states that the defendent in reply to every such demand “ has willfully refused and does now willfully refuse to produce said book,” and to allow him to inspect the same. This statement is not denied at all. The relator then alleges that the defendant, on the 6tli day of January, 1899, locked up all the other books, and that repeatedly and daily thereafter he has demanded to be allowed to look at the same and has been refused. To this irrelevant allegation the defendant interposes a denial that he locked up all the books of account and stock books of the corporation, and that he has repeatedly and daily thereafter, upon relator’s demand, refused to allow him to look at the same. This is a denial of what is not alleged, namely, that the defendant locked up the stock book.
Again, the relator’s attorney deposes to an additional demand made upon the 11th day of January, 1899. He says that on that day, at the office of the company, in the presence and on behalf of the relator, he demanded that the defendant allow the relator to inspect the stock book and to make extracts therefrom. This is in. legal effect undenied. What the defendant denies is, that the attorney demanded that “ they ” be allowed the inspection. The allega
The attorney adds that, in reply to this latter demand, the defendant, “ in the presence of Hr. Charles W. Weston, said Gunst and this deponent,” stated that he had removed the stock book from the office of the company; that between the 6th and the 11th days of January, 1899, it had at all times been out of the office of the company; and that the defendant then and there refused to allow “ said Gunst, the president of the company, to see said stock book.” The denied here is that the defendant made the reply deposed to in the presence of Weston. It is not denied that he made it. The denial would be true if the reply had been made in the presence of Gunst and the attorney. It is also denied that “ during the times therein mentioned,” that is, during the interval between the sixth and the eleventh of January, the defendant refused Gunst the inspection, but it is not denied that he “ then and there ” refused it. Nor is it denied that, during the interval, the stock book had at all times been out of the office of the company.
Thus there were at some points no denials at all, at others mere negatives pregnant, and at still others conjunctive denials which were evasive and tendered immaterial issues. Under well-settled rules the allegation of a demand and refusal was, therefore, admitted. (Kay v. Whittaker, 44 N.Y. 565" court="NY" date_filed="1871-09-12" href="https://app.midpage.ai/document/kay-v--whittaker-3589604?utm_source=webapp" opinion_id="3589604">44 N. Y. 565 ; Young v. Catlett, 6 Duer, 439; Baker v. Bailey, 16 Barb. 54" court="N.Y. Sup. Ct." date_filed="1852-01-05" href="https://app.midpage.ai/document/baker-v-bailey-5458497?utm_source=webapp" opinion_id="5458497">16 Barb. 54; Hopkins v. Everett, 6 How. Pr. 159" court="N.Y. Sup. Ct." date_filed="1850-09-15" href="https://app.midpage.ai/document/hopkins-v-everett-5467838?utm_source=webapp" opinion_id="5467838">6 How. Pr. 159.)
The defendant’s affirmative statements that at no time were any of the books kept away from the relator, and that they were open for his inspection at his choice, were mere conclusions. These statements do not weaken the legal effect of the admitted demand and refusal.
The order appealed from was right, and should be affirmed, with costs.
Yah Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.
Order affirmed, with costs.