Gould v. Olympic Mining Co.

MacLean, J. In these actions, to recover the penalty provided by section 53 of the Stock Corporation Law for refusal to allow inspection of the stock-book of the defendant ■company, a foreign corporation, there was evidence sufficient to warrant a finding that demand and refusal were made at the office of the company, but no evidence that the stock-book [613] of the company was in such office; for the book offered for inspection by the defendant Harvey, manager of the company, from which it is claimed extracts were not permitted to be taken, was uncontradictedly not the stock-book of the company. The defendant Harvey may not be penalized as an officer for failure to show what was not in his possession, and so the judgment in the first action against him may not stand. The first two actions were instituted on June 1, 1905, for refusal to allow inspection on May 29, 1905; and for the refusal to allow inspection on June second thereafter, the second two actions were instituted, against the same defendants, the day following. In these latter actions, judgments were rendered in favor of the defendants. For the reason stated in the first two actions the judgment in favor of the defendant Harvey may stand; but the judgment in favor of the defendant company must be reversed and a new trial ordered, for this may not be determined to be cumulation cf penalties under the decisions in Griffin v. Interurban Street Ry. Co., 179 N. Y. 438, and Cox v. Paul, 175 id. 328; for the second actions were instituted for the refusal occurring only after the commencement of the first actions, and, as said by this court under similar circumstances, “ are not within the condemnation expressed by the Court of Appeals in the Topham and Scudder cases.” Matter of Transfer Penalty Cases, 46 Misc. Rep. 579, 580. Judgment in the first action against the defendant Harvey reversed and a new trial ordered, with costs to appellant to abide the event, and judgment against the defendant company affirmed, with costs. Judgment in the second action in favor of the defendant company reversed and a new trial ordered, with costs to appellant to abide the event, and judgment in favor of the defendant Harvey affirmed, with costs. Scott and Bischokf, JJ., concur. Judgment in first action against defendant Harvey reversed and new trial ordered, with costs to appellant to abide event, and judgment against defendant company affirmed, with costs. [614] Judgment in second action in favor of defendant company-reversed and new trial ordered, with costs to appellant to abide event, and judgment in favor of defendant Harvey affirmed, with costs.