People ex rel. Harriman v. Paton , 5 N.Y. St. Rep. 316 ( 1887 )

Lawrence, J.

This motion must be denied, on the following grounds:

First. Section 885 of the Code of Civil Procedure provides that the affidavit or deposition sought for should be that of a person not a party. It is apparent from the petition of Edward H. Harriman, that he is a party to this proceeding, being with his copartner and co-petitioner the owner of the shares of stock of the Dubuque and Sioux City Bailroad Corporation referred to in the petition. The relief sought for by the petition is merely for the protection of private rights, and the relators must show in such'case,—and they do prima facie show, by their petition in this case,—a personal and special interest, and they are to be regarded in such cases as the real parties in interest (See High on Extra. Leg. Rem. 2 ed. § 431, p. 304, cited by the relators’ counsel; Sheridan v. Mayor, &c., 68 N. Y. 30; Ervin v. Oregon Ry. Nav. Co., 35 Hun, 534).

Second. I do not think that the demand which was made upon the relator was sufficiently specific, as to the affidavit which the respondents required the relator to make.

Third. The relators distinctly swear that they are the owners of the certificates of the stock, specified in their petition, and it would seem, under the decision of the court of appeals in Sheridan v. Mayor, &c. of N. Y. (68 N. Y. 30), that the respondents have no right to inquire whether the transfer of the stock to the relators was merely colorable, or whether a consideration was paid therefor, or as to the occasion of the transfer.

Fourth. It may well be doubted, whether the section under which this application is made, refers to any other proceedings than those which arise in an action, or are incidental thereto.

Ordered accordingly,