Thayer v. Humphreys — 53 N.Y. St. Rep. 386

Majority

p. 386

Algernon O. Thayer, Resp't, v. George H. Humphreys et al., Impl’d, Appl’ts.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

Depositions—Examination before trial—Stockholders.

In an action by a creditor of a foreign corporation to reach the amounts unpaid on subscriptions to the stock of said company, where it appears-that the information on which the action was brought was mere hearsay and an examination of the defendants is necessary to enable plaintiif to frame his complaint, an examination for that "purpose, in respect to the facts respecting the defendants’ ownership of the stock, may properly be granted.

Appeal from an order denying a motion to vacate an order for examination before trial to enable the plaintiff-to frame his complaint.

Sanger & Davis (Walter D. Clark, of counsel), for app’lts; Butler, Stillman & Hubbard (A. H. Van Brunt and Henry H. Whitman, of counsel), for resp’t.

The action was brought in equity to obtain an accounting of the amounts agreed to be paid upon certain stock subscriptions of the defendants, as stockholders in a corporation of the state of West Virginia, and that the defendants be directed to pay the balance remaining unpaid upon their subscriptions, or so much thereof as will be sufficient to pay the amount due on certain judgments obtained by the plaintiff against the company. Not having the necessary information, an application for an examination of the defendants was made, to enable plaintiff to frame his complaint. The papers upon which the original order was granted contained all the statutory allegations, and showed that the information upon which the action itself was brought was purely hearsay, and that to frame a complaint the defendants’ examination would be necessary. Upon the defendants’ motion to vacate such order it was modified so as to limit the scope of the examination to facts respecting defendants’ ownership or holding of the capital stock in the company, and whether the same is or was held by them individually, or as copartners. The rules governing applications of this kind have been so frequently stated that it is only necessary to give our conclusion. We think that the learned judge below was right in permitting an examination, and that the appellants have no just cause of complaint, in view of the limitations placed thereon. The plaintiff’s affidavits show that the application for the examination of the defendants, as limited by the order appealed from, was necessary. We think,, therefore, it should be affirmed, with $10 costs and disbursements..

O’Brien and Ingraham, JJ., concur.