Johnson v. Consolidated Silver Mining Co. — 2 Abb. Pr. 413

Majority

p. 413

JOHNSON against THE CONSOLIDATED SILVER MINING COMPANY.

Supreme Court, First District; Special Term,

February, 1867.

Headnote

Discovery and Inspection oe Books and Papers.

An application for discovery of books and papers in possession .of a party, though made under the provisions of the Code of Procedure, is not to be denied on the ground that it should have been by petition instead of on motion.

To .what extent a corporation may'be required to submit its books and documents to inspection.

Application, for discovery.

In this ease the complaint and affidavits set forth that the plaintiff, being owner of some mines in Nevada, valued at $50,000, made a deed to one Thomas F. Gould, whereby^ for •the nominal sum of one dollar, the same were conveyed, but with the understanding that Gould would proceed to New York and dispose of the same with other mines then under .his control. And furthermore, that he would secure to the plaintiff the purchase price of'the mines at whatever sum they were sold. That Gould came on to New York and negotiated with J. A. Cheever and others, which resulted in the formation of the Silver Mining company, with a capital stock of $8,000,000. That Gould conveyed the mining property, intrusted to him by the plaintiff to be sold, to this company, and that this property, with other interests, formed the basis of the full-paid stock of the company. • That the larger portion of this stock was set apart, to Gould by way of compensation for the property so conveyed, and other portions were set apart to corporators of the company, for which, in fact, they paid nothing. The plaintiff further alleged that the company have sold of their stock enough to realize $500,000. That Gould, as secretary of the company, is receiving the sum of $10,000 as .salary. That $12,000 has been fixed as the salary of the president, and that the salaries of the other officers are proportionately large.

p. 414

The plaintiff then alleged that Gould and the company are proceeding to dispose of the stock ‘ set apart to Gould without making compensation to plaintiff for his mines, which Gould held as his trustee. He also alleged that he had been in the city a long time, seeking a settlement with Gould, who promised compensation from time to time, but had left for ¡Nevada ; that the company had knowledge of his rights, but now refused to recognize the plaintiff’s claim or to disclose to him their books or contracts with Gould, although he had requested such inspection.

The plaintiff claimed that his interest amounted to the sum of $50,000, and now asked the court for an order compelling the company to allow such inspection of books, papers, and contracts.

E. W. Dodge, for the motion

Wm. C. Traphagen & Jas. T. Brady, opposed.

The defendant, the Consolidated Silver Mining Company, has not demurred to the complaint, but has answered or intends to answer.

This application is for- an inspection, &c., of books and papers in the possession of the company, not under the revised statutes, but under section 388 of the • Code. Considering this section and rules 14 to 17 of this court, and the, decision of the general term of this district in Pinder v. Seaman, 33 Barb., 140 (in which case the application was on affidavits and order to show cause), I do not feel authorized to deny this application on the ground that it should have been by petition, notwithstanding the cases cited by the counsel for the compariy.

I am somewhat embarrassed by the fact that the plaintiff’s , notice of motion for the inspection, &c., asks not only for such inspection, &c., for the purpose or with a view of moving for the appointment of a receiver, of (I suppose) such stock, property, rights And interests as the plaintiff may discover the defendant, Gould, may have in the company, or which the Company may have or control belonging to Gould, but also for the present appointment of a receiver and an injunction ; but, upon the whole, on a re-examination of the papers, I am inclined to think that the plaintiff is- entitled to an order for the inspection,

p. 415

&c., but not as full as the one proposed. I think the company, its officers or agents, should allow the plaintiff to inspect at the office of the company all deeds, contract- papers, documents, or entries in books, in its possession or control, showing or relating to the transfers to it by the defendant, Gould, of the mining property or interests, mentioned or alleged in the complaint to have been transferred by the plaintiff to Gould, or showing or tending to show the consideration paid or given, or to be paid or given, by the company for or in consideration of such transfer by Gould, or showing or tending to show the stock or interest, if any, which Gould has in the company, or which the company or any other party or parties have or hold for the use or benefit of Gould. This inspection should be permitted at a reasonable time, or at reasonable times, to be fixed by the order for the inspection, &c., and the plaintiff should have permission to take copies or extracts- of all such deeds, contracts, papers, entries, &c. An order containing substantially the foregoing provisions, or to- the effect above indicated, may be drawn and settled on notice.