New-York tribune., 1903-08-13
PHILBIN SEEKS WRIT.
ASKS TO SEE ". S. II. BOOKS
j. T. Doyle, Not III. j. Brdker, the
Stakeholder Who Sues.

low him to inspect its books on the ground
that there had been mismanagement of the af-
fairs OF the corporation and that its accounts
required investigation at his hands De Lancey
Nicoll and Paul D. Cravath appeared in opposi-
tion to the motion.
Ml. Nico raised a preliminary objection TO
the hearing on the ground that every al
legation of Mr. Doyle's had been denied his only
application could be for alternative writ
Justice Mccall said he would deal with the case
on its merits and hear the argument
Mr.. Philbin then said his client held 520
shares of stock in the company, representing
value of about 100000, and had been stock
holder OF the corporation since its organization
ON my advice" said Mr.. Philbin, he wrote
10 the Metropolitan Street Railway. asking for
an explanation with regard to certain financial
matters. but received no reply. About ten days
afterward, however, a report was sent to every
stockholder. including Mr.. Doyle. based on the
examination OF expert accountants. and which
was in the nature Of reply to the twelve items
which Mr. Doyle desired information An ex-
animation Of this report was carefully made,
with the hope that the matters complained of
would be satisfactorily explained. 1t appeared,
however that the investigation which was made
by Mr.. Teale did not cover Mr.. Doyles re-
quests, and It then became necessary for him
30 apply to the company for leave 10 inspect its
books, which was denied. the president giving
as the reason for his refusal that Mr.. Doyle had
Joined in the attack made by Amory and Braker
on the company AS a matter of fact Mr..
DoyIe's application made in good faith.
NOT AN ATTACK ON COMPANY.
This application cannot be considered as an
attack or the Metropolitan Street Railway Com
pany and thac is shown by the fact that Mr..
Doyle owns stock worth now $4,000, his stock
q few years ago having been worth Sl2OOOO
The reason for application is that several
months have elapsed since these charges of mis-
management were made and published, and the
directors of the company have never done any
thing TO dispel the uneasiness that exists in the
community as to the value of the stock and
assets of-the company"
Mr. Philbin went into long statistical state
Inent in which the figures cited in the criminal
proceeding before Magistrate Barlow were again
quoted by him. The report, he said, stated that
S25 100000 had been required for construction
work. while S35 100000 had been expended, thus
leaving S1OO00OOO unaccounted for. Another
item was that false balance for S3000000
had been carried from 1901 TO 1902. the fact
being that it was asserted that certain notes Of
lessor companies had been taken up. and this
money had been charged back to them. In
changing the Second-ave. road from horse power
10 electricity. Mr. Philbin said. that corpora
ton had in 1898 spent So, 900 upon the work
of construction, while the report of the ac-
countants of the Metropolitan company showed
that the cost of the improvements reached
81 329 600. This discrepancy required ex-
plantation
40 CHARGE OF STEALING.
We don't charge anybody with stealing"
Mr. Phnbin said. There has not been word
said by my client to the effect that there has
been any stealing We do say. though, that we
he
affidavts we shall submit TO you"
In opposing the application Mr.. Nicoll said
Mr. Philbin had proceeded on the theory that
his right to a peremptory writ depended upon
the papers submitted by him, whereas 1t was
upon the allegations made by the respondents
that the case should be decided.
AS TO Investigation" said Mr Nicoll. there
never has been company more thoroughly in
vestigated than this The District Attorney
spent nearly all last winter with his experts
examining US. Not only that, but the company
employed three expert accountants and turned
over its hooks to them. and they spent at least
three weeks i'm making most exhaustive in
vestigation of its affairs. All this time the Off
GERS were taken away from their legitimate
business. Not only that. but all the allegations
made by the would-be wreckers of the company
We're disposed of by Justice Scott in this court
on the trial of the Wormser suit. We submit
the findings and decision OF justice Scout III the
wormser case, in which all these matters were
gone into"
Il may say" Justice Mccall interrupted, that
] shall not in any way review the decision Of
Justice Scott. nor DO I consider it would be my
province to co so"
AMORY CASES RECALLED.
Mr. Nicou spoke of the ". y. Amory pro-
ceedings. Amory's connection with ]. r. Keene,
and the investigation by two expert account
ants He said the plan TO make Henry J.
Braker the receiver. and Amory to
have some connection with him general di-
rector Of transportation in New-York City. Mr..
Nicoll said Mr.. Nreeland came out with a strong
denial Of statements published. in which he at
tackled Amory, and Amory rushed into the mag
istrate's court ask for Mr.. Vreeland's arrest
for criminal libel. Then the whole matter was
fully investigated before Magistrate Barlow
during period of two months. 1t became clear.
he said that Braker. never having been
stockholder until this time. would do a
plaintiff. and Mr.. Doyle was approached and
came in.
This proceeding" continued Mr. Nicou lis
the united effort of Mr.. Philbin, Amory Braker
and the result of the labor Of the others. and
became associate with them in their plan of
attack on the company. Their action resulted
IN very cruel wrong TO the stockholders. as
the stock deprecated in the market. l don't
think this court will permit this petitioner
take possession Of books. papers and
vouchers. with the object of continuing the
warranted and unwarrantabe attacks made on
us
Mr. Cravath followed Mr. Nicou. and argued
that the case. presented. peremptory
writ Of mandamus should not he granted. Mr..
Phibn replied and Justice Mccall directed
counsel on both sides TO submit their papers to
him.
etII IN EouITY FILED M uApTropn