Martin v. William J. Johnston Co. — 25 Abb. N. Cas. 350

Majority

p. 350

MARTIN v. WILLIAM J. JOHNSTON CO.

N. Y. Supreme Court, First District, Chambers;

October, 1890.

Headnote

Corporation ; mandamus to exhibit stock book to stockholder.] Where the petitioner for a writ of mandamus to compel a corporation to' allow him to inspect its records, books of account and stock subscription book, positively alleges that he is the owner of over fifteen shares of the capital stock, an affidavit of an officer of the company

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that he is advised by his counsel and charges the fact to be that the relator is not the owner of over fifteen shares, or of any shares, but which admits that he holds a certificate for twenty shares, and averring that he is not entitled to the possession of such certificate, is insufficient to controvert the relator’s allegation of ownership, and if it appears that he has made the proper demand for inspection at the proper time, and was refused, he is entitled to the writ.

The case of People ex reí. Harfiman y. Patón, 20 Abb. £T. G. 195, followed.

Application by Thomas Gommerford Martin, for a peremptory mandamos, requiring the W. J. Johnston Co., Limited, tp allot? him, his attorneys or representatives, to examine and inspect and take extracts from the records and books of account of said company, and the book kept by said corporation containing the names of all persons who are, or since its incorporation have been, stockholders in the company, and showing their places of residence, number of Shares of stock held by them respectively, and the time they respectively became owners of such shares, and the amount actually paid thereon.

The affidavit of the applicant alleged u that the W. J. Johnston Company, Limited, is a corporation created and existing under and by virtue of chapter 611 of the Laws of the State of Hew York, passed in the year 1875 ; that said corporation was incorporated on January 4, 1889; that deponent is the holder and owner of over fifteen shares of the capital stock of said corporation ; that on September 12, 1890, he made demand on the said corporation to allow him. to examine its stock subscription book and its records and books of account; that said demand was made by deponent upon C. E. Stump, the treasurer of said corporation during the usual business hours of the said company, on September 12, 1890, which was neither a Sunday nor a legal holiday, and that the said O. E. Stump refused to comply with said

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demand, or to permit deponent to examine said books and records, or any or either of them.”

The deponent then alleged facts as to the capital of the company, number of shares, value of stock, the ownership of a large part of its capital by the president of the company, that no formal dividends had been declared, but that the net profits were distributed among stockholders and that no part of the profits of the business for the year 1890 had been paid to deponent, and then proceeded : <£ Deponent desires to inform himself as to the names of the present stockholders, and the respective amount of stock held by them, and as to the profits of the company from its business for the year 1890, and desires to obtain such knowledge, generally, as to the concerns of the company, as will enable him to be advised as to the present value of his stock. Deponent has been unable to obtain such information from the company, and the items thereof are necessary, as he verily believes, for the protection of his rights as a stockholder of said company.

££ The ground of deponent’s information and belief, as to all matters hereinbefore set forth, not stated upon Ms own knowledge, are statements made to him by officers and employes of the said company.”

Arthur H. Hasten (Hasten & Nichols, attorneys), for the applicant, Martin.

Robert G. Ingersoll (Robert H. Griffin, attorney), for the respondent.

The answering affidavit to the application on the part of the relator, for leave “ to examine and inspect and to take extracts from the records and books of account of the William J. Johnston Company, Limited, and the book kept by said corporation containing the names of all persons who were, or since the incorporation of said company have been, stockholders of such corporation, and showing their place of residence, the number of shares of • stock held by

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them respectively, and the time that they respectively became the owners of such shares and the amount actually paid thereon, etc.,” I do not regard as satisfactory.

The 17th section of chapter 611 of the Laws of 1875, being “An act to provide for the organization and regulation of certain business corporations,” makes it the duty of such corporation to keep a book containing the information which is desired by the' relator in this ease, said book to be kept by the treasurer or clerk thereof, which book, the statute provides, “ shall, during the usual business hours of the day, on every day except Sundays and legal holidays, be open for the inspection of stockholders and creditors of the corporation, and their personal representatives, at the principal business office of such corporation; and any and every such stockholder, creditor or representative shall have a right to make extracts from such book. The section then goes on to provide that every officer or agent of any such corporation who shall neglect to make any proper entry in such book or shall refuse or neglect to exhibit of allow the same to be inspected, and extracts to be taken therefrom, shall be deemed guilty of a misdemeanor; ” and it imposes upon the corporation for every such neglect or refusal a penalty of $50 and all the damages arising therefrom.

In this case the petitioner positively alleges that he is the owner of overfifteen shares of the capital stock of the corporation, and he also shows that a proper demand was made upon the treasurer of such corporation, during the usual business hours and on a day not excepted by the statute, for permission to examine the stock subscriptidn book, etc., which was refused. On this state of facts the right of the petitioner to such inspection would appear to be clear, but it is urged on the part of the respondent that the resisting affidavits show that the petitioner is not a stockholder, and that therefore he is not entitled to the relief which he seeks. The paragraph of Mr. Johnson’s affidavit, read on behalf of the respondent, under which this contention is made, is as follows : “ He is advised by his counsel

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and he charges the fact to be," that said Thomas Commerford Martin is not the holder or owner of over fifteen shares of the capital stock of said corporation, or the holder or owner of any shares of such capital stock, admitting, however, as is therein alleged, or as may be purported to be alleged, that the said Martin is the holder of a certificate for over fifteen shares of said capital stock, namely, of a certificate for twenty shares, averring in this behalf, however, that the said Martin is not entitled to the possession of said certificate of stock.”

I regard this denial as evasive, and as not controverting the positive allegation in the petitioner’s affidavit as to his ownership of stock; and, without discussing the question further, I think that the views expressed by me in the case of the People ex rel. Harriman v. Paton ( 20 Abb. N. C. 195 ) oblige me to grant this application.

Footnotes

* 1 R. S. 603 (same Stat., 2 Id. 6th ed. 399), § 4. This provision is to be repealed from and after May 1, 1891, being modified and continued by L. 1890, p. 1075, § 48. For another provision applicable to moneyed corporations, see 1 L. 1882 , p. 655, § 187, which is more stringent and forbids suffering judgment.
* For the new statute, to go into effect May 1, 1891, see L. 1890, p„ 1072, § 29.