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I. [State condition of cause, as thus:] That on the

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day of

day

of 19 this action was commenced by service of a summons without a complaint upon each of the above named defendants; that on the 19, defendants P. and B. duly appeared herein by T. Z., Esq., their attorney, who resides at [stating residence or state office address], and demanded a copy of plaintiff's complaint [or, that neither of said defendants have appeared herein]. That no complaint has yet been served, and the time to serve said complaint extends to the

day of

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19

.

II. That this action is brought [state object, as thus] to recover damages for injuries received by your petitioner by defendants' bill-board being blown down upon your petitioner in the village on the day of 19 while your

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of petitioner was walking in street, in the ordinary pursuit of his business, by reason of the negligent and unskilful construction and erection of said bill-board by defendants, and your petitioner claims to recover damages of the defendants for his said injuries.

III. That the place of trial of this action is and the defendants reside at

number.]

county,

aforesaid [stating street and

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IV. Upon information and belief, that the defendants Y. Z. are copartners in the printing and publishing business at aforesaid, under the firm name and style of and the defendants W. and X. are also engaged in the same business at aforesaid, but in another establishment; and that all the defendants are jointly interested and engaged in owning, erecting, using and letting for hire bill-boards in said village of ; that their copartnership and joint interest in said business, and the manner in which it is conducted and the relation of each defendant thereto, was created and is evidenced by a written contract signed by them.

V. That no copy or duplicate of said contract exists; that said contract is in the possession or under the control of one or more of the defendants [names]. That none of the defendants deny that a written contract between defendants in relation to said bill-board business existed at the time of said injury, but

ments relate to the merits of the action. See, further, the general title, DISCOVERY, Chapter XIII, Art. IV. post.

The action must be already pending and in a court of record other than a Justice's Court in a city. N. Y.

Code Civ. Pro., § 803. Discovery is granted to ascertain facts necessary to state the cause of action or defense, but has often been denied when sought at law, to ascertain names of parties. See par. 7, p. 1351.

the defendant W. claims that said contract does not make all the defendants copartners in said business, nor the defendants W. and X. jointly liable with the other defendants for the plaintiff's aforesaid injuries.

VI. That said contract is not, nor is any copy thereof in your petitioner's possession, nor under his control; that an inspection and copy of said contract is necessary to your petitioner to enable him to frame his complaint in said action [stating reasons fully].

[VII. That your petitioner has applied to the defendants for permission to inspect and take a copy of said contract, but such permission has been refused-stating the particulars of the application, or as appears by the affidavits of C. D. hereto annexed].5

VIII. [Affidavit of merits may be inserted as in Form 1031, post, p. 1373.]

IX. That this application is made in good faith for the purpose stated; and no previous application for such inspection has been made [except, etc.; see p. 1172 of this volume].

WHEREFORE your petitioner prays that the defendants may be directed to allow the discovery and inspection of said contract by your petitioner, and that an order issue directing such discovery, or that they show cause why a discovery and inspection thereof shall not be granted, and for such other and further relief as may be just.

[Date.]

[Signature.®] [Verification as in Form 821, p. 1175.] [For Form of Order, see DiscoVERY, Chap. XIII, Art. IV, post, p. 1626, Form 1388.]

FORM No. 1013.

Affidavit to obtain examination of officer of corporation defendant, and production of documents, to enable plaintiff to plead (action by stockholders for accounting).7

[Title of court and action.]

[Venue.]

C. F. F. being duly sworn, says:

I. That he is the plaintiff in this action, and is and has long been a stockholder in the corporation defendant called the B.

5 This is not essential. Albany Brass, etc., Co. v. Hoffman, 12 Misc. 167; Blunberg v. Lindeman, 19 App. Div. 370, 46 N. Y. Supp. 302.

6 Omission of signature immaterial

if petition is properly verified by plaintiff. Hallett v. Am. Law Book Co., 40 Misc. 652, 83 N. Y. Supp. 110. 7 Adapted from Frothingham Broadway, etc., R. R. Co., 9 Civ. Pro.

v.

and S. Ave. R. R. Co., which for brevity in this affidavit is called "The S. Co." That said S. Co. was incorporated in the year 18 , for the purpose of maintaining a street railroad in the city of New York from [stating route]. That said company has been in the enjoyment of the franchise of operating such railway, and has been making very large profits therefrom, ever since its incorporation. It has a capital stock of dollars, which said stock has been for many years last past a very profitable investment, and said corporation has been regularly paying dividends to its stockholders, and duly paying interest upon its funded debt.

The plaintiff is the owner and holder of

shares of

said stock, which are inscribed upon the books of said corporation in plaintiff's name.

That the defendants [naming which] are, and for some time have been, the directors of the S. Co. That the defendant J. W. F. is its president; that T. B. K. is its secretary and treasurer, and, as such secretary and treasurer, has possession, either individually or in conjunction with said president, of its books and papers.

II. That at about the time of the incorporation of the said S. Co. [Here followed allegations of constant efforts on the company's part to obtain a right of way on Broadway; the formation by the individual defendants of the B. Company for that purpose in the interest of the S. Company and its directors; the names of defendants who held the offices of the B. Company and its books and papers; their acquisition of the right of way and its use by the S. Company, and that the latter company paid large sums of money in acquiring the franchise for the B. Company; and that the officers of the S. Company had given and aferward countermanded notice of a meeting of stockholders to consider an agreement to lease the B. road to the S. Company; and continued thus:]

That plaintiff does not know and has no means of ascertaining what was the agreement referred to by the defendant F. in the statement aforesaid, made between the said B. Co. and the defendant, J. S., or what are the purposes of Mr. S., in pursuance of which he transferred the said stock of the B. S. R. Co. to

Rep. (Browne) 304, where this affidavit was sustained. The Form which follows is brief and will more clearly emphasize the statutory requirements.

The production of the books or papers is allowed as a mere adjunct

of the examination of the corporate officer, and inspection by the adversary will not be allowed. See paragraph 4, p. 1349, supra, and cases cited.

Mr. F., as President of the S. Co., or what trusts, he, the said S., imposed upon the said transfer. But deponent believes the fact to be that the said S. Co. was in fact, the real owners of the said B. Co., and was entitled to have the said stock transferred and held for its benefit, and was entitled to have the use of the said B. Co.'s road secured to it for the benefit of its stockholders, and that the officers and directors of the said B. Co. are in fact, the agents and trustees for the said S. Co., and bound to hold, manage and transfer the property of the said B. Co. for the benefit of the S. Co. and its stockholders, and that any alleged agreement or pretended agreement between Mr. J. S. and the B. Co. or its officers or directors, and any purposes of J. S. in contravention of the rights, duties and obligations aforesaid, are in fraud of the rights of the stockholders of the S. Co.

That it appears by the records in the Register's office of that a mortgage for , executed by the said B. Co. to

W. H. Hayes, as trustee, to secure
18 and acknowledged

dated

day of

on the
Register's office, in Liber

a second mortgage for

F. A. P., to secure

acknowledged

dollars of bonds

, was,

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18, duly recorded in the said of mortgages, page

and that

dollars of bonds, dated

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18 was on the

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duly recorded in the said Register's office, in Liber

mortgages, page

That bonds have been issued under the said two mortgages to the full amount of said dollars, and that the entire railroad, rolling stock, property, franchises, and rights to maintain a railroad upon of the said B. Co. are encumbered by the same

to the full amount thereof. That many of the bonds so issued were sold by the persons having control of the said B. Co., at prices above par, and the money therefor was received by them, and many of the bonds were distributed among the said defendants or some of them and by them retained or sold, and the proceeds of such sales retained by them individually, but for what sums the said bonds were so sold, or how many of them were sold, and how many were distributed, and by whom the same were distributed, plaintiff does not know and has no means of ascertaining.

That the moneys so received have not been accounted for or paid over to the said S. Co., and that neither the said moneys or the said bonds were to any considerable extent used for the legitimate purposes of the said B. Co.

That the building of the entire railroad of the B. Co., which is about miles in length, did not cost to exceed about dollars, and that substantially the entire rolling stock, horses and stable accommodations for the new road, and the legitimate expenses of organization, legal expenses and securing of franchises were paid by the said S. Co. out of the proceeds of an issue of dollars, bonds secured by second mortgage upon the property 18 and that as to about dollars, the same was not expended

of the said S. Co., dated

dollars of the said

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for any lawful purposes, but has been illegally, unjustly and fraudulently disposed of some way to the plaintiff unknown; but the manner of its disposition is known to all or some of the defendants, and that deponent is informed and believes each of the defendants knows what was the disposition of some portion of the said bonds or the moneys realized thereupon, and that all or some of the defendants have personally received and retained some of the bonds or the proceeds thereof.

That plaintiff does not know, and has no means of ascertaining, what formal, colorable or pretended contracts or agreements may have been made by and between the defendants or any of them, either in their own name or purporting to act in behalf of the several corporations aforesaid in oder to appear to justify or excuse the keeping of the control and actual possession and benefit of the said B. Co. railroad from the said S. Co. and its stockholders, but the plaintiff believes that the real reason therefor was the dishonest and illegal purposes of subjecting the franchise and railroad of the said B. Co. by the actions of the defendants occupying the position of officers and directors of said company to the large and fraudulent indebtedness and encumbrance aforesaid, without any apparent or easily established accountability therefor to the stockholders of the S. Co.

That the acts and doings of the individual defendants have given a good cause of action to the S. Co. against them for an accounting respecting the mortgages aforesaid and the proceeds thereof, but that the said S. Co. will not bring any action against the individual defendants, because the individual defendants are now the directors, managers, and officers of said S. Co., and have full and complete control of it, and will not use the name of the company for the purpose of bringing an action against themselves. That the franchise to run cars on B. from

to

is a very valuable franchise, and worth at least, as deponent is informed and believes, dollars. That the result of the mortgages placed on such property by the defendants, has been to encumber this property with mortgages to the amount>

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