Wallace v. Miller Art Co. , 6 A.D.2d 887 ( 1958 )

In a proceeding by a stockholder, pursuant to article 78 of the Civil Practice Act, to inspect corporate books and records, the appeal is from an order confirming the report of an Official Referee, granting the application for the inspection, and denying the appellants’ motion for an order (1) remitting the report to the Official Referee with instructions to vacate the alleged default of appellants at the hearing before the Official Referee and to withdraw the report, (2) to set the matter down on the calendar of Official Referees for a future date, and (3) to await the determination of the Special Term on the applications pending for examinations before trial before proceeding with the reference and until a reasonable time has elapsed for the taking of the depositions if the applications for examination before trial are granted. Order modified by striking from the second ordering paragraph “January 1st, 1948” and by substituting therefor “January 1st, 1952”. As so modified, order affirmed, without costs. It would be unduly oppressive to carry the inspection back to January 1, 1948 (see, e.g., Sandler v. Superior Ind. Gas Corp., 3 A D 2d 917; cf. Matter of Rubino v. Empire Seating Corp., 2 A D 2d 988). Nolan, P. J., Wenzel and Ughetta, JJ., concur; Beldock and Hallinan, JJ., dissent and vote to reverse the order, to grant appellants’ motion to the extent of vacating their default before the Referee and vacating the Referee’s report based on such default, and to remit the proceeding to the Special Term for a hearing and determination on the merits, with the following memorandum: Based upon the undisputed facts in this record, it is our opinion that the refusal of the Referee to grant a short adjournment by reason of the actual engagement of appellants’ attorney in another court, and the refusal of the Special Term to vacate the resulting default, were so arbitrary as to constitute an abuse of discretion as a matter of law.