
    Lottie P. Billingham, Respondent, v. The E. P. Gleason Mfg. Co., Appellant. Lottie P. Billingham, Respondent, v. Elias Whitney, Appellant.
    (Supreme Court, Appellate Term,
    May, 1904.)
    Stock Corporation Law — Penalty for not keeping a stock book not recoverable by a stockholder — If the book does not exist an officer of the corporation can incur no penalty for neglecting or refusing to exhibit it.
    A stockholder of a stock corporation cannot maintain an action to recover of it the penalty imposed upon it, by section 29 of the Stock Corporation Law, for its failure or neglect to keep, or keep open for inspection, such a stock book as is required by said section, the right of action being given by the section to the People alone.
    Where such a book is not kept by the corporation, an officer of it cannot be made liable under the last clause of said section for an alleged willful neglect or refusal to exhibit the book, or allow inspection of it, or the making of extracts from it.
    Appeals by the defendants from two judgments of the Municipal Court of the city of New York, third district, borough of Manhattan, in favor of the plaintiff.
    ¡Robertson, Harmon & Davies, for appellants.
    Bigham & Wagner, for respondent.
   Tbuax, J.

The evidence shows that the defendant, in the first action, did not keep in its possession a stock-book containing the names alphabetically arranged of all persons who were stockholders of the corporation showing their places of residence, the number of shares held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon, or any book of such a nature. See section 29,. of the Stock Corporation Law. Said section 29 provides that every corporation that shall neglect or refuse to keep or cause to be kept such books, or to keep any book open for inspection as herein required, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect or refuse. But such section does not give to a stockholder, such as the plaintiff, any right to bring an action for a failure or refusal to keep said books. Such right of action is given only to the People of the State of New York.

The action against the defendant Whitney, who is the secretary of the corporation which is the defendant in the first action, was brought under the last sentence of said section 29, which provides that if any officer or agent of any such corporation shall willfully neglect or refuse to make any proper entry in such books or shall neglect or refuse to exhibit the same, or allow them to be inspected and extracts taken therefrom, as provided in said section, such officer or agent shall forfeit and pay to the party injured a penalty of fifty dollars for every said neglect or refusal.

As stated the evidence shows that the book required by the first part of said section 29 was not kept by the corporation, and, therefore, the defendant Whitney, who was the secretary of the corporation, could not be said to have neglected or refused to exhibit a book that was not in existence at the time the demand for the inspection of the book was made upon him.

It was said in Lozier v. Saratoga Gas, Electric & Power Company, 59 App. Div. 390, that it could not have been intended that a servant of a corporation should be made liable for the penalty for failing to do what it was not within his power to do. To the same effect is Kennedy v. Chicago, R. I. & P. R. Co., 14 Abb. N. C. 326, 327.

Judgments appealed from are reversed and new trials ordered, with costs to appellants to abide the event.

Ereedmajs", P. J., and Scott, J., concur.

Judgments reversed and new trials ordered, with costs to appellants to abide event.  