
    \Morris A. Tyng, Respondent, v. The Corporation Trust Company, Appellant; Morris A. Tyng, Respondent, v. American Beet Sugar Company, Appellant.
    
      Appeal disposed of on the. theory and record of the trial court—penalty for .a refusal to allow an. inspection of the stock book of a foreign corporation—two actions therefor, one against the corporation and the other against its transfer agent-— deposit of the stock book with its agent, how far a defense to the corporation — effect of the stock bo.ok not containing everything required by the statute.
    
    Upon appeal, cases will be disposed Of upon the theory and upon the record on which they were tried. ’ .
    Upon appeals from judgments rendered in favor of a stockholder of a foreign . corporation in two separate actions, one brought by him against -such foreign corporation, and the other brought against its transfer agent, to ’ recover in each case the penalty prescribed by section 53'of the Stock. Corporation Law ' (Laws of 1892, chap. 688, as amd. by Laws of 1897, chap. 384) for the rfefusal of the corporation and of the transfer agent to allow him to inspect the stock book of the corporation, the Appellate Division will not consider the right of the plaintiff to maintain the two separate suits, or the question whether the foreign corporation had done all that was required of it when it deposited the stock book with its agent, wjiere these points were not raised upon the trial.
    Where it appears that the book on deposit with the transfer agent was kept as a stock book, the fact that it did not contain every particular item which the statute requires to be recorded in the stock book, will not excuse the transfer agent from complying with the stockholder’s request to inspect such book.
    Van Brunt, P. J.,. dissented.
    Appeal in each of the above-entitled actions by the respective defendants, The Corporation 'Trust Company and the American Beet Sugar Company, from an order of the Appellate Term of the Supreme Court, entered in- each action in the office of the clerk of the county of New York on the 16th day of November, 1904,- ' affirming a judgment of the Municipal Court of the city ’of New York, borough, of Manhattan, in" favor of the plaintiff in each action, énteréd on the 11th day of August, 1904.
    
      George Zabriskie, for the appellant.
    
      Morris A. Tyng, respondent, in person.
   Patterson, J.:

• The 'plaintiff, was a stockholder in the American Beet Sugar Company, a foreign corporation, organized under the laws of the State of Ñew Jersey, having an office for the transaction of business in the city of New York. The Corporation Trust Company was also a foreign corporation, having an office for the transaction of business in the city of New York, and was the transfer agent in the State of New York of the American Beet Sugar Company. The plaintiff demanded of both corporations an inspection of the stock book of the American Beet Sugar Company and both corporations refused to allow him to see such book. It is< provided by section 53 of the Stock Corporation Law o.f New York (as amd. by Laws of 1897, chap. 384, § 3) that every foreign stock corporation having an office for the transaction of business in the State of New York, except moneyed and railroad corporations, shall keep in the State a book to be known as the stock book, and that “ If any such foreign stock corporation has in this State a transfer agent, whether such agent shall be a corporation or a natural person, 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, judgment creditor or officer of the State authorized by law to investigate the affairs of such corporation. For any refusal to allow such book to be inspected, such corporation and the officer or agent so refusing shall each forfeit the ■sum of two hundred and fifty dollars to be recovered by the person to whom such refusal was made.”

The plaintiff brought separate actions in the Municipal Court of the city of New York against each of the corporations named for the penalty prescribed in the section of the statute above mentioned, - and recovered a judgment in each action. The defendants appealed to the Appellate Term of the Supreme Court, where such judgments were affirmed, and then, by permission, the judgments were brought up for ievjew in this court.

That the plaintiff was entitled to recover against the Corporation Trust Company is clear. There was proof of every fact required to be shown to render that company liable under the statute.' The demand was made, it was made of the transfer agent, it was refused and the demand was for the book called the stock book kept by the transfer agent in the State of New York. That the book did not contain every particular item required by the statute to be recorded therein could not affect the liability of the American Beet Sugar' Company. It could not refuse to produce what was called and used) as a stock book, because' there was a- failure to comply with every specific requirement of the law. There was a book which was kept as a stock book and that book the plaintiff was entitled to inspect.

It is suggested (not by counsel) that a corporation has complied with the statute when its stock book is deposited with its agent; and, consequently, whére this has been done it incurs no penalty where it does not produce such stock boob. The point was not taken upon the trial of the action, nor was it taken by counsel either on the oral argument of this appeal or in the brief presented on such argument. It was not intimated in any form or relied upon in any way. Even if it had been, it would be too late to raise it upon appeal and it cannot be considered. There was no objection made at the trial to the plaintiff’s right to maintain two independent suits for a specific penalty against each of these corporations. The cases must be disposed of here upon the theory and on the record on which they were tried. (Sears v. Wise, 52 App. Div. 118, 122 Wellington v. Morey, 90 N. Y. 656; Vann v. Rouse, 94 id. 401.)

The judgment in each case should be affirmed, with costs.

O’Brien, Hatch and Laitghlin, JJ., concurred; Van Brunt,, P. J., dissented.

Judgment .affirmed, with costs. 
      
       Laws of 1893, chap. 688.— [Rep.
     