Nathan v. Whitehill — 51 N.Y. St. Rep. 457

Majority

p. 457

Harmon H. Nathan, Resp’t, v. Robert Whitehill, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed February 17, 1893.)

Headnote

Depositions — Examination of party before trial — Corporations.

An order for the examination of an officer of a defendant corporation to enable plaintiff to frame his complaint should not be granted, where it appears that the books of the company are within reach of the plaintiff, and it is not shown that he has made any effort to procure an inspection thereof, or that access thereto has been denied.

Appeal from an order denying a motion to vacate an order for the examination of Whitehill, one of the defendants, for the purpose of framing a complaint.

Áction brought by plaintiff for himself and other stockholders against defendants, as directors of the Pictet Artificial Ice Co., and said corporation, to recover for an alleged breach of trust.

Charles E. Rushmore, for app’lt; John A. Taylor, for resp’t

We see no sufficient reason disclosed upon the papers for the granting of the order for the examination in this

p. 458

case. It seems to be assumed as the basis upon which this action proceeds that, because the defendant Whitehill was a trustee of the corporation in which the plaintiff was a stockholder, therefore he could not deal with such corporation. This theory, which has so long obtained in this state, seems to have been exploded by the decision of the court of appeals in the case of Gamble v. Water Co., 123 N. Y., 91 ; 33 St. Rep., 88 .

It further appears that the company in which the plaintiff was a stockholder kept books of account, which are within the reach of the plaintiff; and it does not appear thatthe plaintiff has made any attempt whatever to procure an inspection of these books, or that access to them has been denied. Therefore, when the plaintiff states that he is unable to procure the information in regard to the transactions of the company in any other way than by this examination, it does not appear that he has exhausted the ordinary avenues of information ; and it seems to us that, until this has been done, the plaintiff is not entitled to the extraordinary relief demanded in proceedings of this nature. Furthermore, this application is made for the pui-pose of enabling the plaintiff to frame his complaint. It would seem that he has information sufficient to prepare such a pleading to bring the parties into court. After the issues have been framed, if it should appear to the court necessary for the plaintiff in preparing for trial to avail himself of such examination, such relief can then be granted ; but we think that'there is no reason for the granting of this order at the special term, as it is undoubtedly intended as a fishing excursion, to ascertain whether the plaintiff has any cause of action upon which he might reasonably hope to succeed.

Order reversed, with ten dollars costs and disbursements, and motion granted.

O’Brien and Follett, JJ., concur.