Opinion
November Term, 1902.
George A. Viehmann, for the appellant.
Junius Pendleton Wilson, for the respondent.
This appeal is from an order granting a peremptory writ of mandamus requiring the appellant, the Herzog Teleseme Company of New York, to permit the petitioner, Anna H. Latimer, to examine, inspect and make extracts from all the papers, books and vouchers of said corporation. The order was granted upon an affidavit made by a person who alleges that he has a power of attorney from said Latimer, authorizing and empowering him to make an examination of the books of said company. The power of attorney is not produced, and not a single fact is stated in the affidavit or in the petition made by such attorney, from which it can even be inferred that the power of attorney gives him authority, or that he has been authorized in any other way, to institute this proceeding, and, therefore, upon that ground alone the application should have been denied.
We do not choose, however, to place the reversal of the order upon that ground alone. We are of the opinion that the facts set out in the moving papers — assuming that the attorney was authorized to institute the proceeding — were insufficient to justify the granting of the order appealed from.
There is no doubt that a stockholder of a corporation has, under certain circumstances, the right to inspect its books and papers for a proper purpose. ( Matter of Steinway, 159 N.Y. 250; Matter of Pierson, 44 App. Div. 215.) This right, however, is not an absolute one, and before he is entitled to it he must establish that the information desired has been refused by the corporation, after a demand made therefor, and that it is necessary for him to have the information in order to properly protect his interest in the corporation. Here not a single fact is stated which brings the application within this rule. Indeed, all that is alleged in the petition and affidavit is that the petitioner has no knowledge of the condition of the affairs of said corporation or the names of its stockholders and that it is necessary to examine "the books of account and the stock books and list of stockholders of said Company to ascertain the names and residences of the other stockholders of said Company, so that the petitioner may confer with them as to the management by the present officers of the affairs of said Company." Manifestly, it is unnecessary to examine all the books, papers and vouchers of the corporation to obtain this information, and, presumably, the corporation would have furnished it to the plaintiff had a demand been made therefor. There are no allegations of mismanagement, or that the stock of the corporation has been or is likely to be depreciated, other than the statement that no dividends have been declared since the petitioner acquired her stock.
The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
VAN BRUNT, P.J., O'BRIEN and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.