New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1871-01-09
THE COURTS.
ANOTHER DECISION AGAINST ERIE.

ANOTHER DECISION AGAINST ERIE.
TIE RIGHTS OF STOCKHOLDERS TO EXAMINE
COMPANY's BOOKS.
About thirty DAYS before the last Board of
Erie Directors was elected, Franklin ii. 'hurchn'
owner OF ninety shares OF Erie Railway common Stock
applied TO Mr. Gould President of the Company ana 10
Mr. Otis Secretary for permission to examine the Trans
fer books His request, he says, was refused ana he
then procured alternative mandamus directed 10 tho
Company and TO Mr.. Gould and Mr.. OTIS, requiring
them TO exhibit the transfer books show cause to the
contrary On the return day the Company demurted 10
the writ insufficient in its recals MI poud maze
answer that he had not control OF the BOOKS ana had
not denied Mr. Churchill access to Them MI O'S WAS
NOT served with the writ and therefore he made no re-
turn To Mr. Goulds return the reator demufreu' ana
insisted he had right at to proceed and argue
the denurrers The respondents claimed that they must
90 on the calendar like any other regnaryorneu ISSUE
and take their turn. Justice Barnard VINO heard the
notion decided that the relato having taken' III 'he
arst instance an alternative instead OF peremptory
mandamus the matter must be governed ny no Pl'C'Vo
in suits, and the issues must 20 on the calendar. nm
the calendar and was argued before Justice Brady An
effort had in the meantime been made by the COMPANY
the Erie Railway were that no demand had been made
on the controlling officers Of the road the directors but
merely their agents and that such demand was not
enough: that the statute under which me realo maui
the demand penal and not TO he strictly construed
that he should in making his demand have stated the
object OF his examination: and that the corporation was
not the proper person to whom to direct the in I
but that II should he directed to rs agents ana
Justice Brady has Just delivered his opinion IN the ease
against the Company and Mr. Gould He holds, atter
full discussion Of the cases hearing on te pracuY" III
such suits that where defendant moves 10 quasn an
alternative mandams-a morton really III th'
n demurrer-it remains with the reIator to determine
whether the proceeding shall he regarded as nonen'-
He holds the return Of the Railway to amount 10
such motion, and that "reiator is permitted 10
mandamus; and while he does not put in
formal demurrer the case Is consideren ~ einaGvu
int Ia Mt of
heard SUCH hut If formal demurrer be nterpo'ed,
il enumerated business and can he heard only
at stated terms II optional with the reator which
shall be, unless the Court specially direct formal plead
p3rtance TO the rcator as it may avoid delay which may
defeat the OF the writ He holds further that, as
Stunning the answer Of the company to be demurrer,
they could not amend IL or substitute plea without
leave of the Court Their attempt therefore, to make
ON the main question he holds that the writ has all
the necessary rectals-a that il essential 10 the eIer-
else OF the right to examine the transfer book that
Churchill is stakeholder OF the Company, holding 90
of its stock, standing in his name the books;
that an election to be held ON the 18th OF October
that within 30 days Of the election he made, "a stock
holder, application AZ the office Of the Company dur
ing the usual business hours 10 jay GQh, nhNlng COn
troll Of the books President and Otis having charge
OF the books Secretary for access 10 ana liberty 10
examine the books OF transfer ana That such access anu
examination were denied. -,
The statute provides that the books Of any incorporated
company in which rhe transfer OF stock In any such
company shall be registered, aud the books containing
times during the usual honrs OF tranactne business he
open TO the examination of every stakeholder OF suc
tors and provides that officer having charge OF such
books who shall demand. refuse neglect 10 exhibit
them, shall forfeit $3.50 The duty imposed on the COM
pany painthat the books be kept ready for the tX-
animation provided by the statute, by any stakeholder
demanding such an examination. The person who may
be the custodian Of the books has nothing 20 do with TINS
right OF examination a" Il IL enough that the sOckhOd-
makes his demand at the proper place and during the
hours To officer OF the company lie IL not
bound seek the directors Of the company. IL Is their
duty 10 provide for his coming; 10 see 10 II when ne
that that obstacles thrown IN
his and that his right bc not 1npeded by insisting
other ceremony formula or the proof or any
Other fact than that required by the statutenameY,
that he the person making the demand, Il stockOuef
whether he il a stakeholder not IL within
their knowledge and can be asccrtained without
DELAY by reference to their books They have no right
ask hs purpose motive. The Legislature has not
the directors officers OF the Company his Judges
IN that respect imposed upon him the obligation 10
declare his purpose motive intent either of them,
III seeking the examination The intention ~ the Legs
enable the stakeholder 10 ascertain whether
not the registry which related TO him was correctly
made, and 10 enable him. by sccrtaug who the stock
holders were TO consult with them if he thought proper
to do In reference 10 the approaching election Inc
regard to the examination Is remedial or benc-
fetal II f. penal only in relation TO the sum or 800
Justice Brady iOrhes his positions by recent decisions,
and holds that the rcliOr entitled to pcrcnptory
and this uaudamuS IL rightly drcCtcdt 10
the Company itself with regard 10 Jay GOulds return
he holds that his denial or the refusal 10 exhibit inc
books being by force of the REALTORS demurrer admitted
10 be true, and affecting his liability for the $3.50 penalty
must De held sufficient return and the demurrer 10 IL
Oyerrulcd. The 80 days having expired the peremp-
tory aldamus IL therefore useless. justice BIauy
awards the reatOr costs against the Erie Railway Com
pany Mr. Gould proceeded against as Presi-
dent the Company. and the Company by it, demurrer
admits what D Gould denies, he refuses costs ~ Mr.
Gould.