State ex rel. Newark & New York Railroad v. Goll

The opinion of the court was delivered by Vredenburg n, J.

A rule was granted by this court, in November Term, 1866, to the relators, for leave to issue an alternative mandamus, commanding the defendant immediately to deliver up to the relators the books, records and papers of the said relators, or show cause at this term why he should not have done so.

The said writ being now here, the defendant moves to quash it.

It is alleged that the writ itself contains no allegations to warrant its issuing. But the writ does show, by way of recital, that the defendant was the acting secretary of the relators, from soon after the first of March, 1866, and continued so to act until first of June, following, and held in his hands, as such secretary, the books, records, and papers belonging to them, amongst others the book of minutes of the proceedings of their meetings, the subscription books, containing the signatures of the subscribers to the capital stock, and their subscriptions to said stock, and the receipt books of the relators, and that the defendant refused to deliver up to them the said books and papers, and still keeps them, although they have been demanded, and that the defendant refuses to inform the relators where the said books, records, and papers are, although frequently requested.

It is complained, first, that all these are by way of recital, and not by positive averment. But this is conformable to *290 all the forms of alternative mandamus I have seen. These facts are, or are supposed to be, shown affirmatively to the court, to their satisfaction, upon the application for the alternative mandamus. The court will not usually grant the rule until they are satisfied upon these points; and upon being so satisfied they grant the rule. It is all sufficient,, therefore, that these facts appear in the alternative manda mus, by way of recital. If there is any further dispute as to their existence, the question should be raised by the return.

It is next contended, that it should appear by positiveaverment, or by way of recital, that the relators have no other legal remedy.

It is, indeed, laid down in Tapping on Mandamus, p. 768, that the writ should allege that the relators cannot have redress by ihe ordinary legal remedies. But the authorities referred to do not support so broad an assertion. They go no further than to decide that the writ must show, by necessary implication that there is no other legal remedy.

In this case, the facts stated in the writ show that there is no other specific legal remedy. What other remedy is-there? Trover or replevin will not bring the books, and' any proceeding in chanceiy restoring the books would only be a mandamus issued out of chancery, instead of out of the king’s bench.

The recitals in the writ show that the defendant was the secretary of the relators, and, as such, had the keeping of their books and papers. These they have demanded of him, and he refused to surrender. These facts are of themselves-sufficient to entitle the relators to the writ. The corporation are the relators — the secretary is the secretary of the corporation. It is the corporation that., by the writ, demands-the books from its secretary. Neither the gentlemen who are named corporators, or the stockholders, or the directors, are before the court. The question before us is simply one between the corporation, as a body politic, and their secretary. As against it, his only duty is, upon demand, to deliver *291 to them their books. Whatever difficulties there may be as to whether the relatora are a corporation, or whether the directors are properly chosen, or as to who shall have the books, the original corporators or the directors, should be raised by the return. The defendant is not in a condition to raise them by way of motion to quash.

If the writ shows, by way of recital, a ease showing in the relators a right, as against the defendant, to the books, the writ will not be quashed.

The next question is as to the return. The relators move to quash the return and for a peremptory mandamus.

In the return the defendant denies that he hath, or ever held any books, records, or papers belonging to the relators; and if he had stopped there it would have been sufficient. But he goes on and qualifies this general denial, showing that by his general denial, he ouly intends to aver his conclusion of law from other facts that he admits.

Tie admits that he was duly appointed secretary of the relators, on the sixth of March, 1866, and acted as such until the fifteenth of May, 1866, and that he has in his possession books, one in which he hath himself written the minutes of the proceedings of the meeting of the corporators, and of the stockholders and directors, and another in which are contained the signatures of the subscribers to the capital stock, and the receipt books of the relators, but that each of these books is his own property, was purchased by him with his own money, and that lie has expended on said purchase the sum of one hundred and fifty dollars, and that even if the said company had a right to said books, he hath a right to their custody, and possession thereof to himself\ for moneys due him, for the said cost of the books, and seven hundred and fifty dollars for the defendant’s services as secretary, and for the use and occupation of the defendant’s premises, by said corporators, directors, and stockholders.

The reason, therefore, which the defendant gives why he considers these books bis property, is that he paid for them himself, to the amount of one hundred and fifty dollars. *292 But he further says, lie himself, as secretary of the relators, wrote, himself, therein the minutes of the proceedings of the corporators, of the stockholders, and directors; that another of these books contains the signatures of the subscribers to the capital stock of the said company, and their subscriptions to said stock, and the receipt books of said company. The defendant does not say that, as secretary, or otherwise, he has, or that there is, any other boobs containing the records of said company. These facts show, as a conclusion of law, that although the relators may owe the defendant for these books, yet that the books are the property of the relators, and were, as soon as the defendant, as secretary, began to put, or permit to be put in them, the minutes, subscriptions, and receipts of the relators, in the possession of and the property of the relators. The conclusion of law is that as secretary of the relators, he bought them for the relators, and looked to them for' payment. As long as the defendant was secretary, and had these books with any records of the relators in them, put in them either by the defendant or by his permission, his possession was the possession of the company, and when he ceased to be secretary he had no right to take the books with him, any more than a merchant’s clerk.

By putting these records in these books, the defendant so mixed his own property with the property of the company, that they could not' be separated, and according to a well established principle of law, the whole property thereby became the property of the company.

The next claim presented by the defendant is, that he had a lien on these books for the purchase money. But according to the view we have taken, the possession of the defendant was the possession of the company, and so, of course, his lien was gone, and so it was also gone as soon as he mixed his own property with that of the company.

The next reason assigned by the defendant for not delivering the books is, that the company owed him seven hundred and fifty dollars for services, and for the use and occupation *293 of the defendant’s land by said company. But I do not see how all this could give the defendant a right to seize these books and go away with them, when he ceased to be their secretary. This would be a remedy by the act of the party, much more extensive than I have ever known to be sanctioned.

The return ought to be quashed, and a peremptory mandamus issue.

Justices Elmer and Woodhull concurred.

Cited in O'Donnel v. Dusman, 10 Vroom 677 .