The New York herald., 1871-01-08
PRINCE ERIE FLOORED.
Important Decision by Judge Brady In
the Churchill Suit.
vsil Of Secrecy to bo Lifted from the Companys
0perat;ons-Accsss to the Company's
Books-Bad for Erie.


IN the suit Of Churchill against the Erie Railway
Company, which has so long been in litigation IN the
Supreme Court, Juage Brady rendered decision
yesterday morning. The details OF this suit have
been 30 frequently given that it is unnecessary TO
Beat them in full. Mr.. Churchill, 1t win be remem-
bered according TO the reoitals IN the writ. was
owner OF ninety shares OF the Erie Railway common
stock. Within thirty days before the election OF
three directors he applied to Mr. Gould, the Presi-
dent, and Mr.. OTIS the Secretary for permission to
look at the books Of the company, and, as he says
was not allowed 10 do He then procured an
alternative mandamus directed to the company and
70 Mr. Gould and Mr.. 0Iis requiring them To exhibit
the transfer books OF the company or show
cause to the contrary. On the return day
the company demurred TO the writ that
Ats Iecitais Were not sulcient Mr.. Gould answered
that ne had not control OF the books and had
MED the relator an inspection OF the books. To this
return the relator demurred. Mr. Otis. not having
been served with the writ. was not in the question
The reator, therefore, insisted that he had right
once to proceed and argue the demurrers. lhe re-
spoDdens claimed that they must 90 on the calendar
like any other regularly formed issue and take their
turn. Judge Barnard, who heard the motion, de-
Clted that the reIator having taken IN the firsL IN
stance Nh Alternative motion oil n perenptory man
danus, the matter must be governed by the practice
IN wrifs and the issues must 20 ON Tie calendar AT
the December term the case came up regularly On the
calendar anti was argued before Judge Brady. In
the meantime an effort mad been made by The com.
pany 10 amend this demurrer. The chief points
eTguedior the Erie Railway were that no de nand had
been made OF the controlling oncers OF The road
the dlrecsors-but merely on their agents ana that
such demand, II made was not enough; that the
gtasute under which the relatoc made Jae demand
was nnal and 10 be strictly construed; that he
should have, III making his demand, stated the OBJ
1ect OF his examination, ana that the corporation
was not the proper person to whom to direct tae
mandanus, but its agents and officers.
The above are the preliminary lacts In the case,
and Judge Brady yesterday delivered ms opinion.
After iul discussion OF the cases bearing on the
practice In such suits lie holds that when defend
ant moves 10 quash an alternative maadamus--a mo-
ton which Is IN the nature Of a demurrer-it remains
with the relator TO determine whe her the proceed
ing shall be regarded as u non-en unera.ed motion
and that relaGor Is permitted To discuss return
anu 10 ask a peremptory mandaIuus and wne ne
does not put in u formal demurrer The case is con-
Sacered as embraced III the description OF nonenu-
1erated business and Is heard as SUCH; but If
formal demurrer be interposed IL becomes enume-
rated business and can be heard only at stated
times. IL Is optional with the re ator which it
shall be unless the Court especially direct formal
pleadinGs TO be lnUerpOsed. TINS option may be
Of great importance TO the reator, 1t may avoid
delay which may defeat the use OF I .e WIT. He
holds 1urther that, assuming the answer OF the
Pany 10 be a demurrer. they could not amend it or
substitute plea without leave OF the Court. This
attempt, therefore, TO MAKE such substitution as
matter OF right lalls. ON the main question he
hos that the writ covers All tne necessary reci;as--
Al that a nssted on Is the exercise of the rsnt to
examine the transfer books; that he is stockholder
O. the company, hoding nine slares OF Its stock,
s;a ding In iis maine on the books: hat election
VS. 10 be ned on the Ilth of ocOber; that within
thirty Gays OF the election he made, as stockhoder,
appacaton at the ONCE OF The company,
during The usual business hours TO Jay Gould, nav
ing control Oh The books as Its President, and utis
having charge OIL The books as lis secretary. ac
cess and nbe.ty TO examine the books OF transfer
and thai SUCH access and examination Denied.
Tie Statute provides tnat the any ineorpo-
rated company in which the transfer Of stock in
such company shall be registered. and the books
ntaining the names OF tie stocKhoders shall at
reasonable times during the usual hours of trans
acting business, be open to the examination OF auy
esockbolder OF such company for thirty days pre-
n ar and i.11C
tAat any oAlcer having charge WHO SNAIL on
demand, refuse or neglect to exhibit them shall
forfeit 1850. The duty imposed on the company is
pialn The BOOKS must be kept reaay Tor the exami-
nation provided by the statute by aLy stockholder
dena ding such examination. The person VINO
may be The custodian OF the books has nothing to
DO with this right OF examination. lI Is enough
tnaL the stockhoiJer makes his demand at the pro-
per place and during the proper hours 10 some OIL
GER OF the company. IL IS their duty provide for
his comin2 TO see 10 1t when he comes 1or That pur
pose that no obstacles are thrown in his way, and
Stat his riglt be not imeoed Dy insisting upon any
other ceremony or formula, or the proofs OF any
other iact han that required by the statute
namely, that he lthe person making the demand)
ls stocxnolder. Whether he Is a stocknoder or
not is within their knowledge aud can be ascer-
tanned without delay by reference 10 ineir books.
Ihey have no right to ask his purpose or motive.
Tie Legislature has not made the directors or
officers OF the company his judges IN that respect
or imposed upSn him the obligation to declare his
purpose motive or interest or either OF them In
seeking the examination: but the courts, if neces-
eary, can see that the Intention OF the Legislature
was TO enable the stockholdec TO ascertain whether
or not the registry which related TO him Was cor
Tectly made and to enable him, by ascertalnng who
The stockholders were, TO consult with them II he
thought proper TO do SO IL reference TO the approach
ing eection. The statute III regard to the examination
Il remedial beneficial. IL is penal only IN relation
10 the sum OF $3.50. In proof OF tns oi the
numerous decisions are cited. He, therefore, holds
that the relator was entitled 70 peremptory man.
damus, and that this mandamuS rightly directed
to the company Itself. With regard to Mr.. Jay
Gonld's return, ne holds that his denial OF the re-
5usai to exhibit tae books being by force Of the
Ing his liaoilty with $3.50 penalty must be held a
sufficient return and the demurrer to II overruled
The thirty days having expired and the peremptory
mandamus, therefore, useless, costs are awarded
the relator against the Erie Railway Company;
but as AR. Gould was proceeded against as Presi-
dent of the company ana the company by its de-
murrer admits what Mir. Gould denies, for the
batter refused