#### William C. Recknagel, Appellant, *v.*The Empire Self-Lighting Oil Lamp Co., Respondent.

(Supreme Court, Appellate Term,

July, 1898.)

Foreign corporation— ¡Refusal of an inspection of the stock-book — ¡Laws of 1897, chap. 384.

Where a stockholder in a foreign corporation, not a moneyed nor .a railroad corporation, and having its only office for the transaction of business within this state located in the city of New York, demands of the vice-president, who is in charge of the office, an inspection of its stock-book, and the vice-president, failing to comply with the request, states that the book is in the hands of an accountant in Brooklyn for the purpose of being written up> and offers to give the stockholder a letter to the accountant or to have the book at the main office of the company in Jersey City, N. J., on the following Wednesday, a violation of chapter 384 of the Laws of 1897 is proved, and the stockholder is entitled to recover the penalty imposed by that statute for the refusal of such a corporation to allow its stock-book to be inspected.

The stockholder is not bound to accept the offers of the vice-president to allow him to inspect the stock-book at some place other than the office of the company, and cannot be required to go elsewhere for that purpose.

Appeal by the plaintiff from a judgment of the Municipal'Court of the city of Mew York, borough of Manhattan, first district, rendered in favor of the defendant, upon a trial had before the court, without a jury.

The nature of the action and the material facts are stated in the opinion.

Atwater & Cruikshank, for appellant.

Henry M. Brigham, for respondent.

Giegerich, J.

This action was brought to recover a penalty under the provisions of the Stock Corporation Law (chap. 36 of the General Laws, § 53), as amended by chapter 384 of the Laws *194-of 1897, for refusing to exhibit to a stockholder the stock-book of' •the defendant corporation. The statute provides: “ Every foreign .-stock corporation having an office for the transaction of business in this state, except moneyéd and railroad corporations,, shall *keep 4herein*a book to be known as a stock-book. * * * Such stock-hook shall be open daily, during business hours, for the inspection u3f its stockholders. * * " * 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. * * * Eor any refusal to allow such a 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 re.covered by the person to whom such refusal was made.”. The answer denied all the allegations -of the complaint,' except that the--defendant was a foreign corporation. The plaintiff is a stockholder -of the defendant corporation, which was organized under the laws •of the State of Rew Jersey. The defendant, which is not a moneyed or railroad corporation, has- its only office for the transaction of business within this State, located in. the city of Rew York.

The plaintiff and one of his attorneys testified as to the demand for an inspection of the defendant’s stock-book. The defendant did not offer any proof.

The testimony -adduced in behalf of the plaintiff tended to show that on the 11th day of February, 1898, at half-past 3 o’clock in the afternoon, the plaintiff, in company with one Theron S. At-water, Esq., -one of his attorneys, .called at the defendant’s Rew York office, Ro. 68 Murray street, in the -city of Rew York, and-made a demand upon one William H. Seidel, who was the person in charge and the vice-president of the company, for an inspection -of its stock-book, but that the latter failed to. then comply with the ■request, stating that the book was in Brooklyn, in the hands of one ‘Cook, an accountant, for the purpose of being written up, and offering to either give plaintiff a letter to said Cook, or to have the book ?at the main office of the company in Jersey City on the following Wednesday. These offers were declined by the plaintiff..

When the plaintiff rested, the defendant moved for a dismissal sof the complaint, and for a direction of a verdict in its favor, on the ground that no breach of the statute had been shown. The justice In rendering judgment for the defendant decided *“*that there was *195no refusal on the part of the defendant to show the stock-book,” and the plaintiff has brought on this appeal.

For the purposes of a determination of such motions the testimony so introduced should have been assumed to be true, and it should have been given the benefit of all legitimate inferences therefrom in favor, of the plaintiff. It is manifest that this rule was not observed by the justice in passing upon the sufficiency of plaintiff’s evidence which, to my mind, showed a violation of the above-cited provisions.

The statute in question was evidently enacted for the purpose of enabling stockholders of a stock corporation to inspect its stock-book at its office in the State, or at the office of its transfer agent, if any, within the State, during business hours.

If this view is well founded, then it is obvious that such book must be kept in the office referred to; that a stockholder has a right to insist upon there making an inspection of the book, and that he is not required to go elsewhere for that purpose.

It follows from these views that neither the offer of Mr. Seidel, to give the plaintiff a letter to Mr. Cook, in Brooklyn, nor his offer to have the stock-book at the principal office in Jersey City on a subsequent day was a compliance with the statute. .The case of Kelsey v. Pfaudler Process Fermentation Co., 41 Hun, 20, cited by the defendant, has no application for the reason that there the person who had the key to the safe where the stock-book was locked up was out of town, that no one else knew the combination and could open the safe, and the defendant’s president informed the Stockholder that such person would be back early Monday morning, and that if he would come in then he could see the book; that on Monday morning the stockholder did go to the defendant’s office, found the person who had the key to the safe and saw the book. Here the situation is entirely different, because the stock-book was not at the proper office when the plaintiff made the demand, and an opportunity for inspection was only offered at places other than such office.

It would, perhaps, have been well for the justice to have admitted evidence of previous efforts to obtain an inspection of the book in question. Such testimony, in my opinion, would have tended to show the good faith of the plaintiff, and have had a bearing upon the validity of the excuse which the defendant’s vice-president gave in explanation of the refusal to permit such inspection.

*196For the foregoing reasons the judgment should he reversed, and a' new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and-new trial ordered, with costs to appellant to abide event. .