People ex rel. Daniels v. Crawford — 52 N.Y. St. Rep. 476

Majority

p. 476

The People ex rel. Frank Daniels, App'lt, v. George Crawford, Resp't.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

Corporations—Inspection of books—Mandamus.

The petition for a mandamus to compel an exhibition of the transfer hook of a corporation alleged that relator applied to respondent at the company's office in this city and asked him if he came to that place and requested him to transfer stock, whether he had the transfer book, and would make such transfer, and was told that he had charge of the hooks in said office and would do so ; that he then asked to inspect the transfer hook and was refused. The answering affidavit stated that the-company was a foreign one and had no office in this city and no transfer agent here, but did not deny the conversation. Held, that relator was not entitled to a peremptory mandamus under these circumstances ; but to an alternative writ, so that the question of fact at issue could be determined.

Appeal from order denying motion for a mandamus.

C. F. Beach, Jr., for app’lt; H. L. Cole, for resp’t.

The relator moved the court below for an order that a writ of mandamus underthe seal of the court issue, directed to and commanding the respondent to exhibit to the relator the transfer book of the Enterprise Mining Company, and a list of the stockholders thereof. Such application was based upon a petition that alleged that the relator asked the respondent, at the office of the corporation in the city of New York, if a stockholder of said corporation desired to have his stock transferred, and came to the office of said company, at 88 Wall street, in the city of New York, and requested of said Crawford that he transfer such stock, whether said Crawford did not have charge of the transfer book, and conformably to the request so made of him would not have-such stock transferred on said transfer book, kept in said office ; that, in answer to this question, said Crawford replied that he did have charge of the books in said office, and would have such stock transferred therein; and that thereupon the said Crawford was requested to allow the relator to inspect the book in which such transfers of stock were made in order that he might obtain a list of the stockholders of said Enterprise Mining Company: which request said Crawford refused.

p. 477

In answer to this allegation Crawford presented an affidavit, in which he stated that the corporation was a foreign corporation, organized and existing under the laws of the state of New Jersey; that it had no office in the city of New York; that he was not its transfer agent in this city ; and that the corporation had not and never had a transfer office or transfer agent in the city of New York; but he did not deny the conversation with the relator as alleged in the petition.

We agree with the court below that, upon these affidavits, the relator was not entitled to a peremptory writ of mandamus, as a question of fact, necessary to sustain his application, was put in issue.

We think, however, that the relator was entitled to an alternative writ of mandamus, so that the question of fact that is at issue can be determined by the court in the way provided by the Code.

The order should, therefore, be reversed, and an alternative writ granted, with ten dollars costs and disbursements of this appeal to abide the final determination of the proceeding.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.