Opinion
February 24, 1953.
Appeal from two orders in a proceeding under article 78 of the Civil Practice Act, the first of which provides for the examination of books and records and the taking of physical inventories of appellant corporations, and the second of which denies appellants' motion for reargument. Order granting examination reversed on the law and the facts, with one bill of $10 costs and disbursements to appellants to abide the event, and the matter remitted to the Special Term for trial of the issues as to whether petitioner is a stockholder, officer or director of appellant corporations, and whether an inspection of their books and records is necessary. A triable issue as to petitioner's status as a stockholder, officer and director is created by the pleadings and papers. (Cf. Matter of Munyer v. Munyer Electrotype Co., 265 App. Div. 819; Matter of Gaines, 180 N YS. 191, affd. 190 App. Div. 941.) A triable issue is also presented as to whether the inspection is necessary in view of the examination of the corporate records already afforded petitioner. If the order were not reversed, modification would be required to the extent of eliminating as unnecessary the provision for a physical inventory of the corporations' stocks of merchandise. Appeal from order denying reargument dismissed, without costs. An appeal does not lie from an order denying such a motion. ( Sherman v. P. Q. Shops, 277 App. Div. 782. ) Nolan, P.J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.