Johnson v. Consolidated Silver Mining Co. , 2 Abb. Pr. 413 ( 1867 )

Sutherland, J.

The defendant, the Consolidated Silver Mining Company, has not demurred to the complaint, but has answered or intends to answer.

This application is for- an inspection, &c., of books and papers in the possession of the company, not under the revised statutes, but under section 388 of the • Code. Considering this section and rules 14 to 17 of this court, and the, decision of the general term of this district in Pinder v. Seaman, 33 Barb., 140 (in which case the application was on affidavits and order to show cause), I do not feel authorized to deny this application on the ground that it should have been by petition, notwithstanding the cases cited by the counsel for the compariy.

I am somewhat embarrassed by the fact that the plaintiff’s , notice of motion for the inspection, &c., asks not only for such inspection, &c., for the purpose or with a view of moving for the appointment of a receiver, of (I suppose) such stock, property, rights And interests as the plaintiff may discover the defendant, Gould, may have in the company, or which the Company may have or control belonging to Gould, but also for the present appointment of a receiver and an injunction ; but, upon the whole, on a re-examination of the papers, I am inclined to think that the plaintiff is- entitled to an order for the inspection, &c., but not as full as the one proposed. I think the company, its officers or agents, should allow the plaintiff to inspect at the office of the company all deeds, contract- papers, documents, or entries in books, in its possession or control, showing or relating to the transfers to it by the defendant, Gould, of the mining property or interests, mentioned or alleged in the complaint to have been transferred by the plaintiff to Gould, or showing or tending to show the consideration paid or given, or to be paid or given, by the company for or in consideration of such transfer by Gould, or showing or tending to show the stock or interest, if any, which Gould has in the company, or which the company or any other party or parties have or hold for the use or benefit of Gould. This inspection should be permitted at a reasonable time, or at reasonable times, to be fixed by the order for the inspection, &c., and the plaintiff should have permission to take copies or extracts- of all such deeds, contracts, papers, entries, &c. An order containing substantially the foregoing provisions, or to- the effect above indicated, may be drawn and settled on notice.