
    Uvalde Asphalt Paving Company, Appellant, v. The City of New York, Respondent.
    First Department,
    March 8, 1912.
    Appeal — effect of affirmance without opinion—municipal corporations — examination of municipal corporation before trial — inspection of public records — application for examination denied.
    An affirmance by the Appellate Division of an order vacating an order is not a decision that part of the opinion of the court below was correct, if other grounds existed for vacating the order.
    The nature of municipal corporations and the functions of officers thereof discussed, per Laughlin, J.
    
      Qucere, as to whether sections 870 and 872 of the Code of Civil Procedure relating to the examination of a party before trial apply to a municipal corporation.
    As the charter of the city of New York and the General Municipal Law allow the examination of municipal records by taxpayers, and to some extent by the public in general, and provide a summary remedy if the examination be refused, an order for the examination before trial of the city of New York, a party defendant, as to municipal records should be denied where the applicant does not show that it is not a taxpayer and has no adequate remedy under the statutes aforesaid.
    Appeal by the plaintiff, the Uvalde Asphalt Paving Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1912, granting the defendant’s motion to vacate an order for the examination of the defendant before trial, through the president of the borough of The Bronx, the principal assistant engineer and the chief engineer of said borough and the permit clerk in the office of said president.
    
      Edward M. Grout [James F. McKinney with him on the brief], for the appellant.
    
      Terence Farley [Francis Martin with him on the brief], for the respondent.
   Laughlin, J.:

The learned counsel for respondent contends that the order should be sustained upon the broad ground that the provisions of sections 870 and 872 of the Code of Civil Procedure, with respect to the examination of a party before trial, do not apply to a municipal corporation. In Havemeyer v. City of New York the court at Special Term expressed the opinion that those provisions do not apply to a municipal corporation, and the order for the examination of the chief engineer' of water supply, gas and electricity of the city was vacated, but other grounds existed for vacating the order, and, therefore, the affirmance of the order by this court without opinion (136 App. Div. 931) does not necessarily constitute an authority in favor of the contention of the counsel for the respondent.

Municipal corporations are mere governmental bodies, having charge of and jurisdiction over particular political subdivisions of the State, and as a rule their official records are open to the inspection of taxpayers and to others interested therein. (Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 1545, 1546; Gen. Mun. Law [Consol. Laws, chap. 24; Laws of 1909, chap. 29], § 51.) Their officers, agents and servants are the officers, agents and servants of the people, and there'is not the same reason for making provision for their examination as in the case of private corporations. The provisions of section 870 of the Code of Civil Procedure with respect to taking the deposition of either party to an action, are clothed in general language; but they were construed as not authorizing the examination of the officers, servants, agents and employees of a party, and such construction rendered them inapplicable to, or inoperative with respect to, corporations (People v. Mutual Gas Light Company, 74 N. Y. 434; Boorman v. Atlantic & Pacific R. R. Co., 78 id. 599) until the Legislature amended subdivision 7 of section 872 of the Code of Civil Procedure, by prescribing that when the party sought to be examined is a corporation “the affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents . of which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers.” (Laws of 1880, chap. 536.) After this amendment it was decided that the agents, servants and employees of a corporation, who do not fall within the description of officers or directors, could not be examined. (Reichmann v. Manhattan Company, 26 Hun, 433.) It had also been decided, prior to the enactment of said amendment, that the provisions of section 803 of the Code of Civil Procedure, with respect to a discovery, or giving an- inspection and copy, were inoperative as to corporations (Boorman v. Atlantic & Pacific R. R. Co., supra), and hence the Legislature provided in the amendment for both examination and discovery as to a corporate party. There is much room for argument on these considerations and on the phraseology of the sentence from which the quotation is made that the Legislature had in mind those corporations which have both officers and directors, for the applicant is required to state whether he desires to examine the officers or the directors, and which of them. Every business corporation, and every corporation other than municipal corporations, has a board of directors, or a board of trustees, or officers, by other titles, performing corresponding functions, and officers as well. Municipal corporations have certain officers, but they have no trustees or board of directors, or other officers ■performing corresponding functions. In a broad sense municipal corporations have many officers; that is to say, officials who are required to take an oath of office, and are deemed for certain purposes officers of the municipality; but most of them perform duties prescribed by statute and not by any local body . exercising similar functions to those of a hoard of directors or other • governing body of private corporations. In a more restricted sense the mayor, comptroller, treasurer, corporation counsel and like general officers elected on the general ticket or appointed for the municipality are regarded as the municipal officers (see Code Civ. Proc. § 431); but in the broad sense municipal officers include all local elective or appointive officers, including appointees under the Civil-Service Law. (N. Y. Const, art. 10, §2; People ex rel. Balcom v. Mosher, 163 N. Y. 32; People ex rel. Percival v. Cram, 164 id. 166; People ex rel. Metropolitan St. R. Co. v. Tax Commissioners, 174 id. 417; Matter of Sugden v. Partridge, Id. 87; Matter of Fay, Id. 526; People ex rel. Lahey v. Partridge, 74 App. Div. 291; Village of Saratoga v. Van Norder, 75 id. 204; People ex rel. Bush v. Houghton, 182 N. Y. 301; People ex rel. Bolton v. Albertson, 55 id. 50; People ex rel. Williamson v. McKinney, 52 id. 374; People ex rel. Lord v. Crooks, 53 id. 648.) It has been held, however, that a municipal corporation is a domestic corporation within the contemplation of the provisions of subdivision 18 of section 3343 of the Code of Civil Procedure and that it is a resident of the State and of the county wherein it has its principal place of business. (Maisch v. City of New York, 193 N. Y. 460.) The only authority at all in point which we have been able to find is Linehan v. Cambridge (109 Mass. 212). It was there held that a statute authorizing the examination of an adverse party and providing that where a corporation is a party the opposite party may examine the president, treasurer, clerk or any director or other officer ” thereof applied only to corporations in the ordinary acceptation of the term and did not include municipal corporations. It would seem, therefore, that there is much force in the contention that the provisions of subdivision 7 of said section 872 should be construed as not applying to municipal corporations.

The considerations already expressed, however, show that if said statutory provisions apply to a municipal .corporation there can seldom be justification for resort thereto since the principal municipal officers to whom the statute would necessarily be confined would ordinarily have little or no personal knowledge and would be able at most to produce records which under the provisions of sections 1545 and 1546 of the Greater New York charter and section 51 of the General Municipal Law may be examined and copied by taxpayers, and to some extent, at least, by the public generally, and if an inspection and copy should be denied, a summary remedy by application to a justice of the Supreme Court is expressly given by said section 1545 of the Greater New York charter regardless of the pendency of an action.

In the case at bar it clearly appears that the only object of the examination is to obtain an inspection of the records in the office of the president of the borough of The Bronx, showing permits to occupy, open or disturb the surface of Valentine avenue between One Hundred and Ninety-fourth street and Two Hundred and Fourth street during a certain period. The appellant shows that an inspection of said records has been refused; but it does not show that it is not a taxpayer and that it has not an adequate remedy under said sections 1545 and 1546 of the Greater New York charter, and said section 51 of the General Municipal Law. Municipal officers are servants of the public, and their time should be devoted to the performance of their public duties, and they should not unnecessarily be required to appear for examination with respect to litigation by or against the city, even if there be authority therefor.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin and Olarke, JJ., concurred: Miller, J., concurred in result on the ground that the statute does not apply to municipal corporations.

Order affirmed, with ten dollars costs and disbursements.  