Lozier v. Saratoga Gas, Electric Light & Power Co.

Majority

p. 390

Theodore F. Lozier, Appellant, v. The Saratoga Gas, Electric Light and Power Company, Respondent. Theodore F. Lozier, Appellant, v. Patrick F. Roohan, Respondent.

Headnote

Corpos'ation— what is not a refusal os' neglect to exhibit its stock book.

•A statement made by an employee of a corporation in charge of its office to the agent of a stockholder who applied at that office for liberty to inspect the stock book of the corporation, that he could examine the book at the office of the president of the corporation, which was only a short distance from it's office, does not constitute a refusal or a neglect to exhibit the stock book within the meaning of section 29 of the Stock Corporation Law, imposing a penalty, for ' such a neglect or refusal.

. Appeal by the plaintiff, Theodore F. Lozier, from two several judgments of the Supreme Court in favor of the defendant in each

p. 391

of the above-entitled actions, entered in the office of the clerk of the county of Saratoga on the 18tli day of April, 1900, upon the dismissal of the complaint in each action by direction of the court, after a trial at the Saratoga Trial Term, and also from an order in each of the above-entitled actions entered in said clerk’s office granting an extra allowance of thirty dollars.

Patrick F. Roohan is an employee of the Saratoga Gas, Electric Light and Power Company in charge of its office at 338 Broadway, Saratoga Springs. Upon three several occasions James F. Swanick, with a power of attorney from the plaintiff, who is a stockholder in the said corporation, applied at said office for liberty to inspect its stock book. Upon each of these occasions he was told that he could see the stock book at the law office of Hr. Brackett, the president, where it then was. It further appears that at least upon one of these occasions he went to the office of the president and was shown the stock book and was allowed to and did take copies therefrom. Thereupon he brought two actions, one against the corporation and one against the employee, to recover penalties. At the trial in each action the complaint was dismissed and an order for an extra allowance of thirty dollars granted.

James F. Swanick, for the appellant.

Walter P. Butler and Charles S. Lester, for the respondents.

These actions were brought under section 29 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1892, chap. 688), which reads as follows :

“ Every stock corporation shall keep at its office, correct books of account of all its business and transactions, and a book to be known as the stock-book, containing the names, alphabetically arranged, of all persons who are stockholders of. the corporation, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof and the amount paid thereon. The stock-book of every such corporation shall be open daily, during business hours, for the inspection of its stockholders and judgment creditors who may make extracts therefrom. * * * Every corporation that shall neglect

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or refuse to keep or cause to be kept such books, or to keep any book open for inspection as herein required, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect or refuse. If any officer or agent of any such corporation shall willfully neglect or refuse to make any proper entry in such book or books, or shall neglect or refuse to exhibit the same, or allow them to be inspected and extracts taken therefrom as provided in this section, the corporation and such officer or agent shall each forfeit and pay to' the party injured a penalty of fifty dollars for every such neglect or refusal and all damages resulting to him therefrom.”

It will be noticed that under this section there are two classes of penalties contemplated. One is a penalty for failing to keep in the office of the corporation certain books, including a stock book containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their place of residence and other matters. For the failure to keep or cause to be kept such books, the corporation is made liable for a penalty which is.given not to an individual stockholder but to the People. These' actions, however, are brought for the other class of penalties, to wit, for the refusal of the corporation, through its officer'or agentj to exhibit the stock book and allow it to be inspected and extracts taken therefrom. We have no doubt from a reading of the statute that such a penalty is only incurred by a willful refusal or neglect. This reading of the statute is not only justified by well-settled rules governing the construction of penal statutes, but by reasonable, inference. Hot only the corporation but also the agent or employee is made liable for the penalty; It clearly could not have been intended that this servant of the corporation should be made liable for a penalty for failing to do what it was not within his power -to do." The plaintiff’s agent was told in response to his demand that the book was not at that office, but that he was at liberty to examine the same at the office 'of the president of the corporation, only a short distance from the main office of the corporation. This action constitutes neither a refusal nor a neglect to exhibit the book within the meaning of the statute subjecting the defendants to a penalty.

We can find no justification whatever for- the orders granting to the defendants an extra allowance. The cases were neither difficult nor extraordinary in any sense of the terms. Those orders must,

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therefore, be reversed and judgment otherwise affirmed, with costs of these appeals to the respondents. •

All concurred.

Judgments unanimously affirmed, with costs. Order for extra' allowance reversed, without costs.