In re the Application for an Examination of Sayre

Chase, J.: A few facts stand out prominently in the record. The Porter Screen Manufacturing Company sold and delivered to the Sayre Manufacturing Company goods and merchandise which were not paid for as agreed. In an action brought on such account, judgment has been entered in favor of the Porter Screen Manufacturing Company against the Sayre Manufacturing Company for $2,164.10. When said goods and merchandise were sold, and when said action was commenced, the Sayre Manufacturing Company was in active business, and owned its plant, consisting of real and personal property. Before the judgment was obtained in said action a new corporation was organized for the purpose of carrying on the same kind of business and in the same town as the old corporation. The persons in control of the new corporation, Sayre Brothers Manufacturing Company, are substantially the same as those who were in control of the Sayre Manufacturing Company. The Sayre Brothers Manufacturing Company is now in the possession and enjoyment of the plant of the Sayre Manufacturing Company, and the Sayre Manufacturing Company has ceased to do business and has no assets that can be reached by execution. In an action to procure the dissolution of a corporation where the action is brought by a creditor, and the stockholders, directors, trustees or other officers or any of them are made liable by law in [334] any event or contingency for the payment of the debt, the persons so made liable may be made parties defendant and their liability may be declared and enforced by the -judgment in the action. (Code Civ. Proc. § 1790.) In such an action if a fraudulent transfer of. the corporate property is alleged, the creditor may join as parties defendants the persons or corporations who hold such property in their possession. (Proctor v. Sidney Sash & Furniture Co., 8 App. Div. 42.) The Porter Screen Manufacturing Company expects to bring an action against the Sayre Manufacturing Company, its directors and stockholders and the Sayre Brothers Manufacturing Company, for the purpose of obtaining payment of. its judgment. An examination of a person or corporation against whom an action is about to be brought in a court of record is authorized, by section 870 of the Code of Civil Procedure. ' (Merchants’ National Bank v. Sheehan, 101 N. Y. 176.) Edward M. Sayre, the person to be examined, is not a mere witness, but one of the persons against whom the action is to be brought, He is also the manager of the corporations included among the proposed defendants. The' information material and necessary to enable the plaintiff to frame its complaint is peculiarly within his personal knowledge. Many of the facts necessary to enable the plaintiff in such action to frame its complaint are matters of public record and of common knowledge, but it does not appear who were present at the stockholders’ meeting of February 1, 1900, nor by what vote the resolution was passed by them, neither does it appear whether the- directors of the Sayre Manufacturing Company ever authorized and directed the conveyance to the Sayre-Hatffeld Company. The facts relating to the transfer of the property of the Sayre Mánufacturing Company, except so far as they appear as matters of record, must necessarily be obtained from some, of the persons that are to be made parties defendant in the action to be brought. Substantially all of the statements in the moving affidavit are made upon knowledge. The statements made on information and belief are so connected with the positive allegations and based upon them that they were properly considered by the judge who granted the order for the examination. [335] The facts and circumstances detailed in the moving affidavit justify the statement that the examination of Edward M. Sayre is material and necessary to enable the plaintiff in the proposed action to frame its complaint. The requisite facts having been presented by the affidavit, there is nothing requiring this court to interfere with the discretion exercised by the judge to whom the application was made in granting the order, or by the justice in refusing to set aside the order on motion of the party to be examined. (Jenkins v. Putnam, 106 N. Y. 272; Pots v. Herman, 7 Misc. Rep. 4.) The appellant suggests that the evidence sought to be obtained on the examination will have a tendency to criminate the witness. It is not apparent that all the questions to be asked on the examination will call for answers that would tend to criminate the witness. On the examination the personal privilege may or may not be insisted upon. We are of the opinion that the question whether the information sought to be elicited by the several questions to be asked will have a tendency to criminate the witness should be reserved until the examination occurs, and if the personal privilege is then insisted upon, rulings can then be made from time to time as the question is presented. (Ryan v. Reagan, 46 App. Div. 590; Matter of Davies, 168 N. Y. 89.) The appellant also suggests that the applicant is not entitled to an inspection of the books of the corporation as provided for by the order. We do not understand that the order provides for the discovery and inspection of the books as provided in sections 803 to 809 of the Code of Civil Procedure. The books and records are to be produced under the order herein simply as an incident to the examination of the party. (Duffy v. Consolidated Gas Co., 59 App. Div. 580 ; Bloodgood v. Slayback, 62 id. 315.) The order should be affirmed, with ten dollars costs and disbursements. All concurred; Smith, J., not sitting. Order affirmed, with ten dollars costs and disbursements.