People ex rel. Daniels v. Crawford — 75 N.Y. Sup. Ct. 547

Majority

p. 547

The People of the State of New York ex rel. Frank Daniels, Appellant, v. George Crawford, Respondent.

Headnote

Foreign coloration — inspection of transfer book — mandamus.

"When on an application for a mandamus to compel the alleged transfer agent in the State of New York of a foreign corporation to exhibit to a stockholder the transfer book and list of stockholders, a question of fact is raised as to whether the defendant is the transfer agent of the corporation, an alternative writ of mandamus should be granted for the purpose of determining such question of fact.

Appeal by the relator, Frank Daniels, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the city and county of New York, on the 4th day of February, 1893, denying the relator’s motion for a writ of mandamus.

The motion was made under section 53 of chapter 688 of the Laws of 1892 (the Stock Corporation Law), which provides that “The transfer agent in this State of any foreign corporation, whether such agent shall be a corporation or a natural person, shall .at all times during the usual hours of transacting business, exhibit to any stockholder of such corporation, when required by him, the transfer book and a list of the stockholders thereof, if in his power to do so.”

C. F. Beaeh, Jr., for the appellant.

II. I. Cole, for the respondent.

The relator moved the court below for an order that a writ of mandamus under the 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 33 Wall street in the city of New York, and requested

p. 548

of said Crawford that lie 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 transfer 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.

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.

Present — Yan Brunt, P. J., O’Brien and Ingraham, JJ.

Order reversed, and an alternative writ granted, with ten dollars costs and disbursements of this appeal, to abide the final determination of the proceeding.