
    Burton E. Greene, Appellant, v. Charles D. Shain, Respondent.
    (Supreme Court, Appellate Term,
    February, 1898.)
    Foreign corporations — Failure to keep a stock book — Refusal to show it. '
    Where a foreign corporation, having an office but no transfer agent in this State, has" failed to comply with the provisions of the Stock Corporation Law (Laws of 1890, chap. 564, § 53, as amended by Laws of 1897, chap. 384), requiring it to keep in its office a stock book for the inspection of stockholders, a person, in the office but not shown by a preponderance of proof to have been • an officer of the corporation, , • cannot be made liable, for the statutory penalty imposed.upon a refusal to show the stock'book, by proof that he answered a demand for it by saying to the stockholder that the book was not in the office, that it. could not be shown and that the only book of that character was in the foreign state.
    Appeal from a judgment of the Seventh Judicial District Court.
    D. J. M. O’Callaghan, for appellant.
    Alexander Tison, for respondent.
   Gildersleeve, J.

The action is brought to recover a penalty of $250, under chapter 384-of the Laws of 1897, amending section 53 of; the Stock Corporation Law; The statute provides as follows, viz.: Every- foreign stock corporation, having an office for the ■ transaction of business in this state, except moneyed and railroad-corporations, shall keep therein a book to be known as a-stock-book * * * Such stock-book shall be open daily, during business hours, for the inspection of its stockholders. * ■* * If any such corporation has in this state a transfer agent, * ' * * such stock-book may be deposited in the office of such" agent, and shall, be open to inspection at all times, during the usual hours of transacting- business, to "any stockholder. * * * Eor .any refusal to allow such book to be inspected, such corporation añd the O'fficer or agent so refusing shall each forfeit the-sum of $250, to be recovered by the .pérson to whom such refusal was made.”

The plaintiff was a .stockholder of the corporation'known as the ■ “ Electricity Newspaper Op.,” a foreign corporation and hot a moneyed nor railroad one. It is undisputed that this corporation had no transfer agent in New York. ■ On August 2, 1897, somewhat more than two months after the statute in question had gone into effect, plaintiff and his attorney, Hr. O’Callaghan, went to the office of the corporation in this city, where they found the defendant, who was also a stockholder, sitting at an open desk in the business office. Plaintiff made a demand upon the defendant for an inspection of the stock-book. The defendant replied that the only stock-book was in New Jersey. Whereupon, Hr. O’Callaghan said to. the defendant, “ Do I understand you to refuse to show Hr. Greene the stock-book?” The defendant replied, “No, I do not refusej it is. not here. I cannot show it to him.” The plaintiff, thereupon, brought this action for the penalty provided for in the statute above referred to, claiming that the defendant was an officer of the corporation, and had refused to allow plaintiff to inspect the stock-book. The defendant denies both of these allegations.

The testimony shows that the corporation did not have a stock-book there at the timé of this demand; but immediately áfterward, having had their attention called to the statute, enacted some two months before, of which they had been in ignorance, they prepared such a book and had it placed in their New York office, where plaintiff was at liberty to inspect it, had he so desired.

The statute, under which this action is brought, being penal in its character, must be strictly construed. Its scope must not be enlarged by implication or inference, and the penalty must not be imposed, except in a case where the plain language of the provision requires it. See Whitaker v. Hasterson, 106 N. Y. 277. A strict construction of the wording of this statute does not authorize any assumption that defendant is punishable for the neglect of the t corporation to have the stock-book on hand on the occasion in question. The only issue raised by plaintiff’s claim in the case is this, viz.: “ Was the defendant an officer of the corporation, and did he refuse to allow the plaintiff to examine the stock-book? ” Inasmuch as there was no stock-book there, it was clearly beyond the defendant’s power to comply with plaintiff’s demand; and he particularly stated that he did not refuse, but that he could not show the book to plaintiff for' the reason above stated. See Kelsey v. Process Co., 41 Hun, 20.

The evidence as to whether the defendant was an officer of the corporation is conflicting and not very satisfactory. The defendant and one of his witnesses deny positively that he was an officer, •but admit the performance of acts and duties on his part that . .-rather tends to show the contrary. We think-, however, that there .was sufficient evidence to sustain the justice in finding that-the .■defendant was not 'such- an officer, within the intendment of the .-law, as to be subjected to -the' penalty in question. Where the ..justice has made his decision on controverted questions of fact, -the weight of evidence will not he reviewed, except in eases of .‘dear injustice.. See Patterson Co. v. Lichtenstein Co., 9 Misc. Rep. 126.

We are of the opinion that the judgment appealed from should . •be affirmed, with costs. • .

Beekman, P. J., and Gieg-erich, J., concur.

.Judgment affirmed, with costs.  