Gould v. Walbridge — 44 N.Y. St. Rep. 835

Majority

p. 835

John H. Gould, Resp’t, v. Frank E. Walbridge, App’lt.

(New York Superior Court, General Term,

Filed March 14, 1892.)

Headnote

Manufacturing companies—Statement—Treasurer.

In an action to recover the penalty for not furnishing a statement of the-affairs of a manufacturing company on request of a stockholder, there was-no question as to the failure to comply with the request; the only controversy being as to whether defendant was treasurer of the company. The-court submitted to the jury the questions whether defendant was elected treasurer and whether the election was by ballot. Held, that the finding of the jury on these questions on conflicting evidence was final and conclusive.

Appeal from a judgment in favor of the plaintiff entered on. the verdict of a jury, and from an order denying defendant’s motion for a new trial.

FI. L. Collier, for app’lt; Beattys & Low, for resp’t

This action was brought by the plaintiff to-recover a penalty of $340, under § 27 of the manufacturing corporation act of 1848, and acts amendatory thereof and supplemental thereto, from the defendant, as treasurer of the John H. Gould Company, for not rendering to the plaintiff a statement of the affairs of said company, when requested by plaintiff so to do. It is fully established by the pleadings and the evidence that the plaintiff was entitled to serve a notice to render a statement of the affairs of said company, and that he did duly serve such a notice-on the defendant, as treasurer of the company, on July 2, 1890, and that defendant neglected to render such statement up to the 20th day of August, 1890, the day of the commencement of this-action.

The language of the statute is as follows: “ Whenever any person or persons owning five per cent, of the capital stock of any company not exceeding one hundred thousand dollars, or any person or persons owning three per cent, of the capital stock of any company exceeding one hundred thousand dollars, formed! under the provisions of this act, shall present a written request to the treasurer thereof that they desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a.

p. 836

•statement of the affairs of said company under oath, embracing a particular account of all its assets and. liabilities in minute detail, and to deliver such statement to the person who presented the ..said written request to said treasurer within twenty days after •such presentation, and shall also at the same time place and keep •on file in his office for six months thereafter a copy of such statement, which shall at all times during business hours be exhibited to any stockholder of said company demanding an examination thereof ; such treasurer, however, shall not be required to deliver such' statement in the manner aforesaid oftener than once in any •six months. If such treasurer shall neglect or refuse to comply with any of the provisions of this act, he shall forfeit and pay to the person presenting said written request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement shall be furnished, to be .sued for and recovered in any court having cognizance thereof.”

The only questions in the case are purely questions of fact, and were correctly submitted to the jury by the learned trial judge in the following language: “ Counsel have agreed that there are but two propositions in the case for you to consider ; the first is, was the defendant treasurer of the company at the time when the notice was served upon him ? Of course if he was, he is liable, because the answer admits that he never gave the information desired until the books were handed to the president, which was about the 20th of August.

“If he was not treasurer, of course he was not liable. With respect to that, you can consider two questions: first, was he •elected treasurer? second, was the election by ballot? With respect to that the evidence is conflicting. You have heard the testimony of Mr. Balestier and the plaintiff with respect to the method of election, and you have heard the testimony of the defendant and his secretary ; you must determine from it whether ■or no this defendant was elected by ballot as treasurer of that •company. If he was, then he became its treasurer, and continued ■so up to the time he was served with this notice, unless in the interval he resigned.”

The jury, by their verdict, on all the evidence, found that the ■defendant was duly elected treasurer, and that he continued to be such up to the time of the serving of the notice. This finding is •conclusive.

There are no exceptions to the admission or exclusion of evidence that are of sufficient importance to require discussion.

The judgment and order appealed from are affirmed, with ■costs.

Sedgwick, Oh. J., concurs.