Fuller v. O'Connor

Appellate Terms of the Supreme Court of New York

Fuller v. O'Connor

61 Misc. 279, 113 N.Y.S. 684

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1908

StatusPublished

This text of 61 Misc. 279 (Fuller v. O'Connor) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fuller v. O'Connor, 61 Misc. 279, 113 N.Y.S. 684 (N.Y. Ct. App. 1908).

Pincite

Opinion

Per Guriam.

The plaintiff has recovered a penalty under section 53 of the Stock Corporation' Law, providing that every stock corporation (except moneyed and railroad) having an office for the transaction of business within this State shall keep a stock book, containing certain information, which shall be open daily during business hours for the inspection of its stockholders, and that, for any refusal to allow such book to be inspected, the corporation and the officer so refusing shall forfeit $250-, recoverable by the person to whom refusal was made." Liability thereunder presupposes transaction of business and an office, not a mere shelter, but. a business abode, with one or more officers employed, with office and perhaps clerical equipment. All were wanting. The corporate franchise had not lapsed, the officers had not abdicated, but the corporation’s business had ceased; and it had given up its office and deposited its books in the corner of a stock brokerage^ office, where the plaintiff found two of the officers and made his demand in writing, also orally. He asserts grievances because these two men did not leave their occupations and, between two ticks of the clock, as it were, comply with his demand. They did not evince unwillingness to afford him what he wanted. The very circumstances evoked questions as to their duties and his rights. Then, too, in his demand in writing, he asked too much (Henry v. Babcock & Wilcox Co., 125 App. Div. 538) — asked what they might be criticised for offering him. What he demanded orally was a repetition of his writing, as they seem to have understood it. They asked advice of counsel; and the gentleman they inquired of, the same night or the following morning, mailed a list of the stockholders to the plaintiff, who returned thanks with a request for the stockholders’ addresses; but he had instituted this action before his request came. The judgment should be reversed. The plaintiff did not make out a cause of action for the penalty.

Present: Gildersleeve, MacLean and Seabury, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Per Guriam.

The plaintiff has recovered a penalty under section 53 of the Stock Corporation' Law, providing that every stock corporation (except moneyed and railroad) having an office for the transaction of business within this State shall keep a stock book, containing certain information, which shall be open daily during business hours for the inspection of its stockholders, and that, for any refusal to allow such book to be inspected, the corporation and the officer so refusing shall forfeit $250-, recoverable by the person to whom refusal was made." Liability thereunder presupposes transaction of business and an office, not a mere shelter, but. a business abode, with one or more officers employed, with office and perhaps clerical equipment. All were wanting. The corporate franchise had not lapsed, the officers had not abdicated, but the corporation’s business had ceased; and it had given up its office and deposited its books in the corner of a stock brokerage^ office, where the plaintiff found two of the officers and made his demand in writing, also orally. He asserts grievances because these two men did not leave their occupations and, between two ticks of the clock, as it were, comply with his demand. They did not evince unwillingness to afford him what he wanted. The very circumstances evoked questions as to their duties and his rights. Then, too, in his demand in writing, he asked too much (Henry v. Babcock & Wilcox Co., 125 App. Div. 538) — asked what they might be criticised for offering him. What he demanded orally was a repetition of his writing, as they seem to have understood it. They asked advice of counsel; and the gentleman they inquired of, the same night or the following morning, mailed a list of the stockholders to the plaintiff, who returned thanks with a request for the stockholders’ addresses; but he had instituted this action before his request came. The judgment should be reversed. The plaintiff did not make out a cause of action for the penalty.

Present: Gildersleeve, MacLean and Seabury, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

61 Misc. 279, 113 N.Y.S. 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-oconnor-nyappterm-1908.

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