Opinion
July 14, 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 Heating Corp., 2 A.D.2d 988).
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.