Sage v. Culver — 47 N.Y. St. Rep. 890

Majority

p. 890

Henry W. Sage et al., App’lts, v. Andrew Culver et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Depositions—Examination before trial.

Plaintiffs, stockholders in a railroad company, brought an action against, tbe president and treasurer for an accounting and discovery of the application and disposition of the funds of the company by defendants, alleging that they owned a large majority of the stock and had the exclusive control thereof, but alleging no improper conduct on their part. Held, that plaintiffs were not entitled to an order for the examination of defendants before trial, for they, acting under the directions of the board of directors, are not trustees who deal with themselves.

Appeal by plaintiffs from an order of Kings county special term vacating an order for the examination of defendants before-trial.

William C. DeWitt, for app’lts; Wingate & Cullen (George W. Wingate, of counsel), for resp’ts.

—The plaintiffs are stockholders in the Prospect Park & Coney Island Bailroad Company. The defendant Culver is the president thereof, and the defendant Washington i& the treasurer. The plaintiffs have commenced an action to obtain an accounting of the affairs of the defendants’ company, and an accounting and discovery of the application and disposition of the funds of the company by the defendants Culver and Washington. The plaintiffs obtained an order for the examination of the defendants to enable the plaintiffs to frame their complaint This order was subsequently vacated upon notice, and this appeal is from the order vacating the same. No case was made for the order for the examination of the defendants. No facts are alleged, which show a cause to exist. The defendants Culver and Washington are stated to have owned a large majority of the stock,, and by virtue of their ownership have had exclusive control of the affairs of the company. No statement is made that either Culver, Washington or the company have done any wrong to the-plaintiffs. They are officers of a company, and are not as such, so long as they act under the directions of the board of directors, trustees who deal with themselves. They are the servants of the company, and may take what is due them by order of the trustees, especially when the allegation is not directly made that the defendant trustees have received money without right, or that the company had refused to assert its claim for redress for the common injury.

The order should therefore be affirmed, with costs and disbursements.

Dykman, J., concurs; Cullen, J., not sitting.