
    Moe Lieber, Respondent, v. Blue Haven Successors, Inc., Appellant.
    Supreme Court, Appellate Term, Second Department,
    May 19, 1955.
    
      
      Charles Weishaupt for appellant.
    
      Charles Glatzer for respondent.
   Per Curiam.

Plaintiff, a stockholder of defendant corporation, brought this action to recover a penalty under section 77 of the Stock Corporation Law for neglect or refusal to furnish a statement of defendant’s affairs. The statute requires that a written request for such a statement be made 1 ‘ to the treasurer or other fiscal officer ’ ’ of the corporation, and further provides that “ the treasurer shall make such statement ”. Since the statute is of a penal character, it must be strictly construed and applied. The complaint alleges the service of a demand upon defendant’s president and sole officer who was “in complete charge and control of the corporate funds of the defendant, and Avas its only fiscal officer.” It is further alleged in substance that the defendant accepted the request for a statement, without objection, and thereafter entered into stipulations extending its time to comply with the statute. These allegations do not meet the statutory requirements, which cannot be made the subject of an estoppel or waiver. The complaint, therefore, should have been dismissed on the ground that no cause of action is stated.

The order should be unanimously reversed, on the law, with $10 costs to defendant, and motion to dismiss plaintiff’s complaint for insufficiency granted.

Kleihfeld, Hart and Arkwright, JJ., concur.

Order reversed, etc.  