
    Albert S. Moore, Respondent, v. The Institute of Educational Travel, Incorporated, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Corporations — action by judgment creditor for accumulated penalties for refusal to examine stock-book — when refusal justified.
    In an action under section 32 of the Stock Corporation Law by a judgment creditor against a corporation for accumulated penalties for alleged refusal to allow an examination of its stock-book by plaintiff there can be no recovery unless such refusal were wilful.
    Where it appears that defendant had no stock-book but gave plaintiff access to the only one it had, a stock certificate book that contained information concerning the issue of stock certificates and in which were no writings except that the first and second certificates were signed in blank by the president and treasurer, defendant cannot be held guilty of wilful refusal to exhibit a book which it did not keep, and a judgment in favor of plaintiff will be reversed and the complaint dismissed upon the merits with costs.
    A right of action to recover a penalty against the corporation for failure to keep a stock-book is given only to the people of the state.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, in favor of plaintiff.
    Louis O. Bergh, for appellant.
    Burnstine & Geist (Julius Kendler, of counsel) for respondent.
   Shearn, J.

Appeal by defendant from judgment for fifty-two dollars in an action under section 32 of the Stock Corporation Law by a judgment creditor against a corporation for accumulated penalties for alleged refusals to allow the judgment creditor to examine its stock-book. The judgment on which the plaintiff based his right to five hundred dollars as a penalty was for twenty-nine dollars.

The defendant had never issued, any certificates of stock and had no stock-book. It had merely a stock certificate book containing fifty stock certificates. There were no writings in the stock certificate book except that the first and second certificates were signed in blank by the president and treasurer.

Plaintiff went to the office of the defendant in the Metropolitan building and saw the treasurer who told him that the books were at New York University. Plaintiff then went to the place directed, the office of defendant’s vice-president on Washington Square East, and asked the vice-president for permission to see the stock-book. The stock certificate book was shown to him immediately in default of the statutory stock-book, there being no such book.

This statute is highly penal in character and is to be strictly construed against the plaintiff. There can be no recovery in such a case unless the neglect or refusal is willful. The defendant gave plaintiff access to the only book it had that contained information concerning the issue of stock certificates. Under these circumstances, it could not be guilty of willful refusal to exhibit a book that it did not keep, the reason for not keeping it being that no stock certificates had ever been issued.

This does not mean that a corporation can with impunity fail to keep a stock-book and thus defeat the right of those entitled to know who the stockholders are. There is a separate penalty for failure to keep a stock-book, but the right of action for its violation is given only to the people of the state of New York.

Judgment reversed, with costs, and complaint dismissed upon the merits, with costs.

Guy and Pendleton, JJ., concur.

Judgment reversed, with costs, and complaint dismissed.  