Majority
p. 643James B. Swain, Resp’t, v. Samuel M. Pettengill, App’lt. (Supreme Court, General Term, Second Department, Filed December 8, 1890.)
Headnote
Depositions—Affidavit.An affidavit to procure an order for the examination of a defendant before trial is insufficient where it fails to state the nature of the action or the substance of the judgment demanded. Allegations that plaintiff is a stockholder in a corporation and that defendant is its president and has wrongfully issued stock which he has converted to his own use are not sufficient, to show such facts.
Appeal from order denying motion to vacate an order for the examination of defendant.
Plaintff’s affidavit, upon which the order was granted, is as follows :
First, That he is the plaintiff in this action and is and has long been a stockholder in the corporation called “The Metropolitan Transit Company.”
That the said Metropolitan Transit Company was incorporated in the year 1872 for the purpose of constructing and maintaining a certain railroad in the city of New York, from Bowling Green, in said city, to and across the Harlem river, and has a capital stock of five million ($>5,000,000) dollars.
That said plaintiff is the holder of eight hundred (800) shares of said capital stock, which are inscribed upon the books of said corporation in plaintiff’s name.
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That the defendant, Samuel M. Pettengill, is now and has been for many years one of the directors of said corporation and for several years its president and that one A. J. Dwinelle is its secretary and treasurer, and as such secretary and treasurer has possession, either individually or in conjunction with said Pettengill of the books and papers of said company.
Deponent further "says that he is informed and believes and charges the fact to be, that the said defendant Samuel M. Pfettengill has wrongfully and without authority .of the said corporation issued or caused to be issued stock of the company to the amount of four millions and five hundred thousand ($4,500,000) dollars or thereabouts and has converted said stock to his own use.
That this action was commenced by the service of a summons on the defendant, Samuel M. Pettengill, on the 9th day of December, 1889, but no complaint has been served.
That the defendant, Samuel M. Pettengill, has appeared by James S. Millard, his attorney, whose address is Tarrytown, New York.
That the said Samuel M. Pettengill and A. J. Dwinelle, whose examination is desired, have offices for the regular transaction of business in the Potter Building, on the corner of Nassau and Beekman streets, in the city of New York.
And this deponent further says that the testimony of said Pettengill and Dwinelle is material and necessary for the plaintiff herein for the prosecution of this action and that he may know therefrom the particulars of the facts which will enable him to frame a complaint.
That he is not now. able to frame a complaint and. does not know the circumstances under which the said stock was issued nor the time when the said stock was converted and does not know to whom the proceeds of said stock have been paid except in a general way.
That they have been divided among the friends of defendant and divers other persons, but who those persons are the plaintiff does not know.
That the books and papers of the defendant and the minutes and stock-books of the Metropolitan Transit Company are necessary to enable the plaintiff to make the examination which he desires in order to frame a complaint and that the defendant and the said Dwinelle, as secretary and treasurer of the Metropolitan Transit Company, have possession of the books and papers of the said company which the plaintiff desires to examine, also certain contracts and leases made by said Pettengill with and to certain persons and companies to this plaintiff unknown.
And the deponent says that the said Pettengill and Dwinelle are officers and directors of said corporation, whose testimony is necessary and material.
That no previous application for examination of said Pettengill and Dwinelle or for the recovery of such books and papers has been made herein to any other judge except one from I. N. Hills, county judge of Westchester county, which was set aside for the
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Teason that the affidavit upon which it was granted was not served on the defendant’s attorney.
J. S. Millard {Phillip Carpenter, of counsel), for app’lt; Wm. G. Yalentine, for resp’t.
The affidavit upon which the order to examine the defendant Pettengill and the witness Dwinelle was granted is defective and insufficient. Neither the nature of the action nor the substance of the judgment demanded is stated in the plaintiff’s affidavit The only statement is to the effect that the plaintiff is a stockholder in the Metropolitan Transit Company. That Pettengill is its president, and has wrongfully issued stock which he has converted to his own use. A summons, but no complaint has been served. Neither the cause of action nor the judgment to be demanded can be even inferred from this statement. The affidavit, therefore, fails to comply with § 872, subd. 2, of the Code of Civil Procedure.
The order should, therefore, be reversed, with costs and disbursements, and the motion granted, vacating order, with costs.
Dykman, J., concurs; Pratt, J., not sitting.