In re Martin

Headnote

MAndamus—Appeal.

The propriety of an order granting a writ of mandamus will not be considered by the appellate court where it appears that such writ has been isáued and obeyed, as any ruling thereon would have no practical effect.

Appeal from order granting writ of mandamus requiring the William J. Johnston Company to allow an examination of its books. The following is the opinion at special term:

Lawrence, J.—The answering affidavit to the application on the part of the relator for leave “to examine and inspect, and to take extracts from the records and books of account of the William J. Johnston Company, limited, and the book kept by said corporation containing the names of all persons who were, or since the incorporation of said company have been, stockholders of such corporation, and showing their place of residence, the number of shares of stock held by them respectively, and the time that they respectively became the owners of such shares, and the amount actually paid thereon,” etc., I do not regard as satisfactory. The

seventeenth section of chapter 611 of the Laws of 1875, being “An act to provide for the organization and regulation of certain business corporations,” makes it the duty of such corporation to keep a book containing the information which is desired by the relator in this case, said book to be kept by the treasurer or clerk thereof, which book, the statute provides, “ shall, during the usual business hours of the day, on every day except Sundays and legal holidays, be open for the inspection of stockholders and creditors of the corporation, and their personal representatives, at the principal business office of such corporation; and any and every such stockholder, creditor or representative shall have a right to make extracts from such book. The section then goes on to provide that every officer or agent of any such corporation who shall neglect to make any proper entry in such book, or shall refuse or neglect to exhibit or allow the same to be inspected, and extracts to be taken therefrom, shall be deemed guilty of a misdemeanor; ” and it imposes upon the corporation for every such neglect or refusal a penalty of fifty dollars, and all the damages arising therefrom. In this ease the petitioner positively alleges that he is the owner of over fifteen shares of the capital stock of the corporation, and he also shows that a proper demand was made upon the treasurer of such corporation, during the usual business hours, and on a day not excepted by the statute, for permission to examine the stock subscription book, etc., which was refused. On this state of facts the right of the petitioner to such inspection would appear to be clear, but it is urged on the part of the respondent that the resisting affidavits show that the petitioner is not a stockholder, and that, therefore, he is not entitled to the relief which he seeks. The paragraph of Mr. Johnston’s affidavit, read on behalf of the respondent, under which this contention is made, is as follows: “ He is advised by his counsel, and he charges the fact to be, that said Thomas Oommerford Martin is not the holder or owner of over fifteen shares of the capital stock of said corporation, or the holder or owner of any shares of such capital stock, admitting, however, as is therein alleged, or as may be purported to be alleged, that the said Martin is the holder of a certificate for over fifteen shares of said capital stock, namely, of a certificate for twenty shares, averring in this behalf, however, that the said Martin is not entitled to the possession of said certificate of stock.” I regard this denial as evasive, and as not controverting the positive allegation in the petitioner’s affidavit as to his ownership of stock; and, without discussing the question further, I think that the views expressed by me in the case of People v. Patón, 20 Abb. N. C., 195 , oblige me to grant this application.