Majority
p. 531(69 Hun, 343.) THAYER v. HUMPHREYS et al. (Supreme Court, General Term, First Department. May 12, 1893.) Argued before O’BRIEN and INGRAHAM, JJ.
Headnote
Examination op Adverse Party before Triad.In a suit to hold stockholders of a corporation liable on their subscriptions, for the purpose of satisfying a judgment against the corporation, an examination of defendants, to enable plaintiff to frame a complaint, will be allowed, as to defendants’ ownership of stock, where plaintiff’s affidavits show that the action is brought on hearsay, and that such examination is necessary.
Appeal from special term, New York county.
Action by Algernon O. Thayer against George H. Humphreys and Montford P. Sayce, individually and as partners, and others. From an order denying the motion of Humphreys and Sayce for vacation of an order for their examination, they appeal.
Affirmed.
Sanger & Davis, (Walter D. Clark, of counsel,) for appellants.
Butler, Stillman & Hubbard, (A. H. Van Brunt and Henry H. Whitman, of counsel,) for respondent.
The action was brought in equity to obtain an accounting of the amounts agreed to be paid upon certain stock subscriptions of the defendants, as stockholders in a corporation of the state of West Virginia, and that the defendants be directed
p. 532
to pay the balance remaining unpaid upon their subscriptions, or so much thereof as will be sufficient to pay the amount due on certain judgments obtained by the plaintiff against the company. Not having the necessary information, an application for an examination of the defendants was made, to enable plaintiff to frame his complaint. The papers upon which 'the original order was granted contained all the statutory allegations, and showed that the information upon which the action itself was brought was purely hearsay, and that to frame a complaint the defendants’ examination would be necessary. Upon the defendants’ motion to vacate such order it was modified so as to limit the scope of the examination to facts respecting defendants’ ownership or holding of the capital stock in the company, and whether the same is or was held by them individually,. or as copartners. The rules governing applications of this kind have been so frequently stated that it is only necessary to give our conclusion. We think that the learned judge below was right in permitting an examination, and that the appellants have no just cause of complaint, in view of the limitations placed thereon. The plaintiff’s affidavits show that the application for the examination °of the defendants, as limited by the order appealed from, was necessary. We think, therefore, it should be affirmed, with $10 costs and disbursements.