People ex rel. Daniels v. Crawford — 22 N.Y.S. 1025

Majority

p. 1025

PEOPLE ex rel. DANIELS v. CRAWFORD.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

Mandamus—Alteenative Wbit—Petition—Answebinq Affidavit.

A petition for writ of mandamus stated that defendant told relator that he had charge, in a certain office in New York, of the transfer book of a certain corporation of which relator is a stockholder, and if a stockholder desired his stock transferred, and came to such office, defendant would have the same transferred; and that relator then asked permission to inspect such hook, and obtain a list of stockholders of such companj-, which defendant refused. Defendant presented his affidavit, which stated that such corporation was organized and existing under the laws of New Jersey, and had no office in New York; that he was not its transfer agent in such city; and that it had no transfer office or agent therein. Held, that it was error to refuse an alternative writ.

Appeal from special term, New York county.

Petition of the people, on the relation of Frank Daniels, for a writ of mandamus directed to George Crawford, an alleged officer of the Enterprise Mining Company, commanding him to exbibit to relator the transfer book and list of stockholders of such corporation, in which relator is a stockholder. From an order refusing an alternative writ of mandamus, relator appeals.

Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ.

C. F. Beach, Jr., for appellant.

H. L. Cole, for respondent.

The relator moved the court below for an order that a writ of mandamus under the seal of the court issue, directed to and commanding the respondent to exhibit to the relator the transfer book of the Enterprise Mining Company, and a list of the stockholders thereof. Such application was based upon a petition that alleged that the relator asked the respondent, at the office of the corporation in the city of New York, if a stockholder of said corporation desired to have his stock transferred, and came to the office of said company at 33 Wall street, in the city of New York, and requested of said Crawford that he transfer such stock, whether said Crawford did not have charge of the transfer book, and, con

p. 1026

formably to the request so made of him, would not have such stock transferred on said transfer book kept in said office; that in answer to this question said Crawford replied that he did have charge of the books in said office, and would have such stock transferred therein; and that thereupon the said Crawford was requested to allow the relator to inspect the book in which such transfers of stock were made, in order that he might obtain a list of the stockholders of said Enterprise Mining Company, which request said Crawford refused. In answer to this allegation Crawford presented an affidavit in which he stated that the corporation was a foreign corporation, organized and existing under the laws of the state of New Jersey; that it had no office in the city of New York; that he was not its transfer agent in this city; and that the corporation had not, and never had, a transfer office or transfer agent in the city of New York; but he did not deny the conversation with the relator, as alleged in the petition. We agree with the court below that upon these affidavits the relator was not entitled to a peremptory writ of mandamus, as a question of fact necessary to sustain his application was put in issue. We think, however, that the relator was entitled to an alternative writ of mandamus, so that the question of fact that is at issue can be determined by the court in the way provided by the Code. The order should therefore be reversed, and an alternative writ granted, with $10 costs and disbursements of this appeal, to abide the final .determination of the proceeding.