Opinion
November 27, 1944.
Appeal by defendants from an order insofar as it granted to the plaintiff certain relief pendente lite in an action in equity to enforce claimed rights possessed by him under a contract with the defendants. Order modified on the law by striking therefrom the provision permitting the plaintiff to inspect and make written extracts from the corporate and general books of account of the corporation. As thus modified, the order, insofar as appealed from, is affirmed, with ten dollars costs and disbursements to the appellants. The granting of a general inspection of the corporate books was premature if the application be deemed to be one in support of the complaint under section 324 of the Civil Practice Act or otherwise. Such relief may only be given after joinder of issue. If this provision be deemed to accord to the plaintiff rights of inspection in his status as a stockholder at common law or under section 10 of the Stock Corporation Law, the granting of such relief in this action was improper. It may only be accorded on a separate application under article 78 of the Civil Practice Act. In such a proceeding the propriety of granting the discovery or inspection may be determined in accordance with settled practice. ( People ex rel. P.C. Savings Bk. v. Cromwell, 102 N.Y. 477.) The modification of the order is without prejudice to the making of such an application. The provisions of section 117 of the Civil Practice Act do not authorize the practice of the plaintiff in respect of this item. The "general relief" referred to in that section concerns general relief pertinent to the action Plaintiff asserts that the relief on this item concerns his right as a stockholder and is not in pursuance of his rights as a plaintiff in this action. If it were the latter, the application would be premature. Close, P.J., Carswell, Adel, Lewis and Aldrich, JJ., concur.