
    People ex rel. Harriman et al. v. John Paton et al., Defts.
    
      (Supreme Court, Special Term, New York County,
    
    
      Filed January, 1887.)
    1. PRACTICE — DEPOSITION OP A PARTY CANNOT BE TAKEN UNDEB CODE Civ. Pro. § 885.
    Section 885 of the Code of Civ. Pro., provides that the affidavit or deposition sought for shall be that of a person not a party. The deposition of a party cannot he taken under it.
    2. Corporations — Foreign Corporations — Bight op transfer agent to inquire as to ownership of stock.
    The transfer agent of a foreign corporation has no right to inquire whether the transfer of stock to the relator was meiely colorable or whether a consideration was paid therefor, or as to the occasion of the transfer.
    Motion to take the deposition of the relators to be used on a motion.
    
      Seward Da Costa Cruthrie, for relator; John E. Parsons, for defendants.
   Lawrence, J.

This motion must be denied on the following grounds: First — Section 885 of the Code of Civil Procedure provides that the affidavit or deposition sought for should be that of a person not a party. It is apparent from the petition of Edward H. Harriman that he is a party to this proceeding, being, with his co-partner and co-petitioner, the owner of the shares of stock of the Dubuque & Sioux City Railroad Corporation referred to in the'petition. The relief sought for by the petition is merely for the protection of private rights, and the relators must show, in such cases — and they do, prima facie, show by their petition in this case — a personal and special interest, and they are to be regarded, in such cases, as the real party in interest (See High on Extra Leg. Rem. Sec. 431, Sec. Ed., 304, cited by the relator’s counsel; Sheridan v. the Mayor, etc., 68 N. Y., 30; Erwin v. Oreg. R'y Nav. Co., 35 Hun 671.) Second — I do not think that the demand which was made upon the relator was sufficiently specific as to the affidavit which the respondents required the relator to make. Third — the relators distinctly swear that they are the owners of the certificates of the stock specified in their petition, and it would seem under the decision of the court of appeals in Sheridan v. The Mayor, etc., 68 N. Y., 30, that the respondents have no right to inquire whether the transfer of the stock to the relators was merely colorable, or whether a consideration was paid therefor, or as to the occasion of the transfer. Fourth — It may well be doubted whether the section under which this application is made refers to any other proceedings than those which arise in an action or are incidental thereto. Ordered accordingly. 
      
       See opinion in same case, reported ante, p. 313, for the facts.
     