People ex rel. Delmar v. St. Louis & San Francisco Railroad

Majority

p. 415

People ex rel. Walter Delmar App’lt, v. The St. Louis and San Francisco Railroad Company, Resp’t.

(Supreme Court, General Term, First Department,

Filed April 25, 1887.)

Headnote

1. Foreign corporations—Duty of transfer agent to exhibit transfer book.

The transfer agent of any corporation existing beyond the jurisdiction of this state is required at all reasonable times, during the usual business hours, to exhibit to any stockholder, when required, the transfer book of such corporation, and also a list of the stockholders thereof, if in his power to do so.

2. Mandamus—Reference may be ordered before granting—Code Civ. Pro. , § 2070.

Before proceeding to decide a motion for a mandamus, made under Code Civil Procedure, section 2070, the court has the right to order a reference to take proofs on matters upon which fuller information is desired.

John E. Burrill, of counsel, for resp’t; John JR. Dos Passos, of counsel, for relators.

The transfer agent of any corporation existing beyond the jurisdiction of this state is required at all reasonable times during the usual business hours to exhibit to any stockholder, when required, the transfer-book of such corporation, and also a list of the stockholders thereof if in his power to do so.

It does not appear herein that the transfer agent of the corporation proceeded against has not the power to exhibit the book and list mentioned.

In a proceeding of this character, which is expressly provided for by the Code, § 2070, we have no doubt of the right of the court, without regard to the provisions of the Code, to order a reference to take proofs on matters upon which

p. 416

it desired fuller information before proceeding. See Dwight v. St. John, 25 N. Y., 203 .

This citation is made only because it recognizes a power which has never been challenged in any case to which our attention has been called herein or heretofore.

The object of the reference was to make more certain and reliable the unsatisfactory" denials contained in the answering affidavits, and thus to secure such information as would enable the court better to understand and dispose of the motion.

It may be that upon the coming in of the referee’s report of the evidence taken before him that there will be no dispute as to any material question of fact, in which case the learned judge presiding might consider himself bound to grant the' writ, or to deny it, if any material fact was put in issue.

Motion for stay denied, with ten dollars costs to abide event of motion.