12 Misc. 468 | The Superior Court of the City of New York and Buffalo | 1895
The defendant is the New York transfer agent of the Oregon Improvement Company, a foreign corporation created under the laws of Oregon, and doing business at Portland in that state. The relator, a stockholder of the company, requested the transfer agent to exhibit to him the transfer book and a list of the stockholders. Laws 1892, c. 688, § 53; Laws 1842, c. 165, §§ 1, 2; In re Sage, 70 N. Y. 220; In re Martin, 62 Hun, 557, 17 N. Y. Supp. 133; People v. Paton, 20 Abb. N. C. 172, 195; Ross v. Wigg, 34 Hun, 193. The defendant declined, upon the ground that the books had been sent to the home office in Oregon, and, not being under his control, he could not comply. The truth of the reason given for noncompliance with relator’s request is substantiated by the defendant’s affidavit. In view of these facts, the peremptory writ of mandamus applied for cannot issue. Code, § 2070. The case relied on by the relator (People v. St. Louis & S. F. R. Co., 44 Hun, 552) does not authorize a reference as to a disputed fact, but only where further information is required. The writ can only issue where the facts are undisputed, and it is within the power of the person to whom the writ would issue to perform the act. People v. Hayt, 66 N. Y. 607; People v. Rome, W. & O. R. Co., 103 N. Y. 95, 8 N. E. 369; People v. Board of Police, 107 N. Y. 235, 13 N. E. 920; People v. New York Infant Asylum, 122 N. Y. 190, 25 N. E. 241; People v. Northern Pac. R. Co., 50 N. Y. Super. Ct. 457; Kennedy v. Chicago, etc., R. Co., 14 Abb. N. C. 326; People v. St. Louis, etc., R. Co., 19 Abb. N. C. 1; People v. Paton, 20 Abb. N. C. 172; People v. St.