Fuller v. Alex. Hollander & Co.

• Decision Date: 05 December 1900
• Citation: 61 N.J.E. 648,47 A. 646
• Parties: FULLER v. ALEX. HOLLANDER & CO.
• Court: New Jersey Supreme Court

47 A. 646

61 N.J.E. 648

FULLER

v. ALEX. HOLLANDER & CO.

Court of Errors and Appeals of New Jersey.

Dec. 5, 1900.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by James N. Fuller against Alex. Hollander & Co., a corporation. Decree for plaintiff. Defendant appeals. Reversed.

On appeal from the following order advised by Vice Chancellor Reed: "This matter being opened to the court by W. Holt Apgar, of counsel with the petitioner, and Robert H. McCarter, of counsel with the defendant, and the argument of counsel having been heard, it is on this fourteenth day of November, A. D. eighteen hundred and ninety-nine, ordered that the said Alex. Hollander & Co, do forthwith bring within this state all and every the books of 'the said corporation, whether in the form of bound volumes or single writings, as well as day books, journals, cash books, check books, bank books, order books, shipping books, rebate books, ledger checks, receipts, check stubs, letter books, letterpress copies, balance sheets, ciphers, cipher keys, and all and every other book and books, whether of original entry or otherwise, by whatsoever name or names designated, known, or styled, containing or showing, or in any way relating to or concerning, any of the business and affairs, the receipts, commissions, disbursements, expenses, income, and profits, and all the business and transactions, of whatsoever name, nature, and character, of the said Alex. Hollander & Co., from the day of the date of its incorporation, on the twenty-fifth day of April, eighteen hundred and ninety-eight, to and until including the day of the date of this order, and deliver the same at the office of Frank P. McDermott, at No. 259 Washington street, in Jersey City, on or before the twenty-fifth day of November, 1899, the same to there remain, and to be left and kept, at the said office, and in the custody of the said Frank P. McDermott, until including the second day of December, 1899, and thereafter for such longer period, if any, as said petitioner may then be advised to ask, and this court may grant, and until the further order of this court permitting the removal thereof by the defendant from the said office; and that during the said period the said petitioner, and his attorneys and counsel, with such agents, clerks, accountants, and experts as said petitioner or his attorneys or counsel shall choose to assist him and them therein, shall have and be given, and be and they hereby are granted and given, full and free access thereto, and to all thereof, and full inspection thereof, in order that he and they may make full and complete examination, abstract, and copy thereof, as he and they may be advised. And it is further ordered that the said defendant, Alex. Hollander & Co., shall pay the costs of filing this petition and order." The following is the vice chancellor's memorandum opinion: "Whatever books the company has, except the stock and transfer books, are at its New York office. The petitioner is denied an inspection of them. The denial is put upon the ground that he has no real interest in the affairs of the corporation which entitles him to an inspection of the corporate books. It is charged by the respondent that while a certificate for one share of stock was issued to him, and he was elected a director and treasurer and secretary of the newly-fledged corporation, nevertheless all this was illusory, and in fact the petitioner never paid for his share, and by an understanding between Mr. Hollander and himself be was to be a mere shadow, with no interest whatever in the corporation. The certificate having been issued and receipted for, the inference is that it was paid for. I am not satisfied that Mr. Hollander paid for it, but, if he did, Fuller, by virtue of the certificate, became the owner of one share. Otherwise his election as director and the whole scheme was a fraud upon the corporation act, which Hollander should not be permitted to set up. I will order the books to be brought to the New Jersey office, to be kept there for one week for the inspection of the petitioner, at such time as the parties may select, or, on failure to agree upon the time, at such time as I hereafter direct."

Robert H. McCarter and Albert Seibert, for appellant.

W. Holt Apgar and W. R. Spooner, for respondent.

COLLINS, J. (after stating the facts). We have not examined the question considered by the learned vice chancellor, because we think that the order advised was coram non judice. The order was made after summary hearing, upon an original petition not filed in or referring to any pending cause. The petitioner alleged that he was the holder of stock in a company formed under the general corporation act of this state, and was also the secretary and treasurer thereof, and that, except the stock and transfer books, all the books of the company were in the city of New York, in the custody of the president of the company. He further alleged that the president owed the company, and that he believed its funds had been illegitimately used. He further alleged that he had demanded and, had been denied...