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Nathan v. Whitehill

22 N.Y.S. 63 Court N.Y. Gen. Term Decision date 1893-02-17 English

Delivered by VAN BRUNT, P. J.

Contents

Majority

p. 63
(67 Hun, 398.)
NATHAN v. WHITEHILL et al.
(Supreme Court, General Term, First Department.
February 17, 1893.)

Headnote

1. Discovery—Examination of Party before Trial.
A motion for the appearance of defendant, a trustee of a corporation, for examination by plaintiff, one of the stockholders thereof, so as to enable him to frame bis complaint against the corporation, should be denied where it appears that plaintiff has made no attempt to examine the books of the corporation, and has not been denied access to them.
2. Same—Necessity.
Such motion should be denied when it is apparent that the purpose of the examination is to ascertain if plaintiff has a cause of action on which he might reasonably hope to succeed.
Appeal from special term, New York county.
Action by Harmon IT. Nathan, for himself and all other stockholders of the Pictet Artificial Ice Company, Limited, against Robert White-
p. 64
hill and others, directors, and the Pictet Artificial Ice Company, Limited. From an order denying a motion to vacate an order obtained by-plaintiff, requiring defendant Whitehill to appear for examination for the purpose of enabling plaintiff to frame his complaint, defendant Whitehill appeals.
Reversed.
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT,. JJ.
Charles E. Rushmore, for appellant.
Taylor, Thompson & ICaufman, (John A. Taylor, of counsel,) for respondent.

We see no sufficient reason disclosed upon the-papers for the granting of the order for the examination in this case. It seems to be assumed as the basis upon which this action proceeds-that, because the defendant Whitehill was a trustee of the corporation in which the plaintiff was a stockholder, therefore he could not deal with such corporation. This theory, which has so long obtained in. this state, seems to have been exploded by the decision of the court of appeals in the case of Gamble v. Water Co., 123 N. Y. 91 , 25 N. E. Rep. 201 .

It further appears that the company in which the plaintiff was a stockholder kept books of account, which are within the reach o'f the plaintiff; and it does not appear that the plaintiff has made any attempt whatever to procure an inspection of these books, or that access-to them has been denied. Therefore, when the plaintiff states that he-is unable to procure the information in regard to the transactions of the company in any other way than by this examination, it does not appear that he has exhausted the ordinary avenues of information; and it seems to us that, until this has been done, the plaintiff is not entitled to the extraordinary relief demanded in proceedings of this nature. Furthermore, this application is made for the purpose of enabling the-plaintiff to frame his complaint. It would seem that he has information sufficient to prepare such a pleading to bring the parties into court.

After the issues have been framed, if it should appear to the court necessary for the plaintiff in preparing for trial to avail himself of such examination, such relief can then be granted ; but we think that there is no reason for the granting of this order at the special term, as it is undoubtedly intended as a fishing excursion, to- ascertain whether the-plaintiff has any cause of action upon which he might reasonably hope to succeed. Order reversed, with $10 costs and disbursements, and motion granted. All concur.

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