Nathan v. Whitehill , 67 Hun 398 ( 1893 )

VAN BRUNT, P. J.

We see no sufficient reason disclosed upon the-papers for the granting of the order for the examination in this case. It seems to be assumed as the basis upon which this action proceeds-that, because the defendant Whitehill was a trustee of the corporation in which the plaintiff was a stockholder, therefore he could not deal with such corporation. This theory, which has so long obtained in. this state, seems to have been exploded by the decision of the court of appeals in the case of Gamble v. Water Co., 123 N. Y. 91, 25 N. E. Rep. 201.

It further appears that the company in which the plaintiff was a stockholder kept books of account, which are within the reach o'f the plaintiff; and it does not appear that the plaintiff has made any attempt whatever to procure an inspection of these books, or that access-to them has been denied. Therefore, when the plaintiff states that he-is unable to procure the information in regard to the transactions of the company in any other way than by this examination, it does not appear that he has exhausted the ordinary avenues of information; and it seems to us that, until this has been done, the plaintiff is not entitled to the extraordinary relief demanded in proceedings of this nature. Furthermore, this application is made for the purpose of enabling the-plaintiff to frame his complaint. It would seem that he has information sufficient to prepare such a pleading to bring the parties into court.

After the issues have been framed, if it should appear to the court necessary for the plaintiff in preparing for trial to avail himself of such examination, such relief can then be granted ; but we think that there is no reason for the granting of this order at the special term, as it is undoubtedly intended as a fishing excursion, to- ascertain whether the-plaintiff has any cause of action upon which he might reasonably hope to succeed. Order reversed, with $10 costs and disbursements, and motion granted. All concur.