Opinion
June 28, 1911.
Frank E. Smith and Thomas B. Cotter, for the appellant.
D-Cady Herrick and Thomas O'Connor, for the respondents.
It is unimportant whether the practice pursued in receiving the reply affidavit on the motion herein was right or wrong. Such affidavit was unnecessary, for notwithstanding the defendant's answer there was no denial that they as outgoing officers of the relator had not delivered over to the corporation and its incoming officers the books and papers belonging to it. It was no defense to say that the books were not in defendants' actual custody and that they had voluntarily turned them over to some stranger. It was the duty of the defendants as officers of the relator corporation to have the books in custody, and if they were not in actual custody to regain them so that they could deliver them to the new officers elected in their places.
Mandamus is the proper remedy to compel an outgoing officer of a corporation to deliver over books and papers belonging to the corporation, and ordinarily a mandamus would be granted without question compelling such officer so to do. In the present case, however, there has been much litigation between the defendants and the relator and others and there is now pending a reference for an accounting as the result of the decision in Callanan v. K., A.C. L.C.R.R. CO. ( 199 N.Y. 268), on which reference the books and papers in question will be often referred to and their presence and production will be necessary to establish the rights of the various parties. Under the circumstances we think the better way is to direct that all books and papers of the relator corporation be delivered by the defendants to the county clerk of Clinton county. He can arrange for such inspection and access by the relator as is necessary for the carrying on of its business, and at the same time the books will be accessible to the other parties for such use as may be required.
The order appealed from should be reversed, with ten dollars costs and disbursements, and a mandamus granted, without costs, directing the defendants to deliver forthwith to the county clerk of Clinton county the specified books and papers, subject to the inspection of either party and subject to the order of the referee or court for the purposes of the trial of the Callanan action.
All concurred, except BETTS, J., who concurred as to reversal and as to the issue of writ, but dissented as to giving books to county clerk and holds that the books should be returned to relator, the owner of same.
Order appealed from reversed, with ten dollars costs and disbursements, and motion for mandamus granted, without costs, directing defendants to deliver forthwith to the county clerk of Clinton county specified books and papers, subject to the inspection of either party and subject to the order of referee or court for the purposes of the trial of the Callanan action.