
    The People ex rel. Alice Stobo, Resp’t, v. James S. Eadie, President of the Globe Fire Insurance Co., et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Corporations—Examination op transfer-book.
    Under § 199 of chapter 409, Laws 1883, giving to a stockholder in a corporation an absolute right, within thirty days, prior to an election, to examine the books containing the names oí stockholders, the court has discretion to grant such an examination where the application is not made within the statutory period.
    (Van Brunt, P. J., dissents.)
    Appeal from order granting peremptory Writ of mandamus.
    
    
      Lemuel Skidmore, for app’lts; James J. Allen, for resp’t.
   O’Brien, J.

From the order that a peremptory writ of mandamus issue out of this court, directed to appellant Eadie, as president, and the Globe Fire Insurance Company, commanding them to permit the relator, Alice Stobo, or James J. Allen, her attorney, to examine and inspect the transfer book of the company, or such book kept by it as contains the names of the stockholders, this appeal is taken.

The application was made upon affidavits in which it was stated that the Globe Fire Insurance Company was a domestic corporation; that Alice Stobo, ’ the relator, held in certificates seventy-five shares of the capital stock of said company, which certificates were made out in the name of her deceased husband, Robert Stobo; that she went with her counsel to the office of the company for the purpose of obtaining an inspection of the transfer book, or book containing a list of the stockholders of said company,'in order that she might be able to vote intelligently at the approaching meeting of the stockholders of said company; that she requested the president to permit her to examine the same, which was refused. It also appears that Mrs. Stobo’s attorney had prior to that time called and made the same request, which was refused, and on another occasion he again called and requested to be informed as to the date of the annual meeting, which information was also refused.

In her affidavit Mrs. Stobo further states that she was informed and believed there was to be a meeting of the stockholders of the company for the election of directors and officers some time between the first and fifth days of January, 1892.

It will thus be seen that after information as to the real date of the meeting was refused, and acting upon the information which the relator received and believed, that the election of directors and officers would occur within thirty days after her application for permission to inspect the book containing the names of stockholders, she made this application intending to take advantage of the provision of the statute which gives the absolute right to a stockholder, within thirty days prior to an election, to make an examination of the books containing the names of stockholders. Chap. 409, § 199, Laws of 1882.

Upon the argument of the motion it appeared for the first time that the application was not made within thirty days of an election. The court, however, held that the papers disclosed sufficient to authorize it to exercise its discretion, and accordingly the order appealed from was made.

It must, be apparent from the papers themselves that if the court had any discretion it was wisely exercised in granting the application. The principal ground upon which the appellant relies is that the court has not the power, or that if it had it will not enforce it, in any case in favor of the right of a stockholder t) inspect the books of a corporation except at the time and in the manner specified by the statute governing the corporation. To sustain this ground the appellant relies upon two cases of Hatch v. The Lake Shore & Michigan Southern Railroad Company, 11 Hun, 1, and the People v. The Northern Pacific Railroad, 18 J. & S., 459.

An examination, however, of those cases will show that the ground of the refusal to allow an inspection of the books recognized the power of the court, and the right to exercise its discretion, to either grant or withhold a mandamus, and thus the contention of the appellant is disposed of.

In the case of Hatch v. The L. S. & M. S. R. R., supra, this court said “ the object of this statute (§ 1, 1st Revised Statutes, ■601) is quite apparent. It intends to put it in the power of every stockholder, for thirty days previous to any election of directors, to ascertain the names of all the stockholders of the company, so that he can exert such influence or use such lawful means as he may deem proper to effect an election of such directors; but the statute does not, we think, cut off all the rights of stockholders of a corporation to examine its transfer book for proper purposes, and on proper occasions at other times. There are no rules' in the statute indicating such an intention, nor any negation of the rights of stockholders which requires that construction.

'"“We think, therefore, that it is within' the power of the court whenever a case is presented that requires it to be done for the purpose of preserving the rights and interests of stockholders, to interfere by mandamus to compel the exhibition of the transfer books of the corporation or the book containing the names of its stockholders.”

The court of appeals expressly approved of this language, in affirming the decision of this court, in the Matter of the Application of Sage v. The Lake Shore, etc., Railroad, 70 N. Y., 222. It being therefore a matter of discretion which upon the facts was properly exercised, the order appealed from should be affirmed, with costs and disbursements.

Patterson, J.—I concur.

Van Brunt, P. J.

I dissent from the foregoing conclusions. In the first place the applicant is not a stockholder of the corporation. Upon the books of the company no stock stands in her name, nor has she made any application for a transfer which has been refused.

Her husband was the owner of stock which she alleges she has transferred to herself, but she nowhere alleges that such stock was ever transferred on the books of the company. It seems to me that the only way a company can determine who are stockholders is by their books, and unless a party appears upon their books to be a stockholder they are not compelled to recognize such person as such.

In respect to the case of The People ex rel. Hatch v. Lake Shore R. R., 11 Hun, 1, it seems sufficient to say that no question of the kind now presented was before the court, and what was said upon the subject was entirely obiter.

If such general right existed, what was the necessity of the legislation contained in 1 E. S., 601, § 1; as it did not exist, it was necessary to confer it by legislation.  