The defendant has been convicted of the violation of section 352 of article 23-A of the General Business Law in failing without reasonable cause to produce, pursuant to subpoena, certain books and records of the Public Service Holding Corporation, of which he was the president. The subpoena was directed to the defendant individually and not as an officer of the Public Service Holding Corporation. The Public Service Holding Corporation is organized under the laws of Delaware. It has never filed a certificate authorizing it to do business in this State. It maintains its principal office in the city of Wilmington, Del., but it also main*164tains an office in New Haven, Conn. All its records are either in Wilmington or New Haven. By the subpoena the defendant was required to produce these records at an inquiry to be held by the Attorney-General on September 18, 1933, concerning the sale of stock of the Public Service Holding Corporation within the State of New York. On that date the defendant appeared pursuant to the subpoena and requested an adjournment to September twentieth in order to arrange for the production of the records, none of which were within the State. On the adjourned date he appeared, but failed to produce the records.
At the trial the defendant testified without contradiction that after service of the subpoena he had consulted the board of directors of the corporation with respect to the production of these books and that the board considered that it would seriously interrupt the business of the corporation if its books were withheld for any considerable time. The board had, therefore, refused to authorize the defendant to remove the books and records to this State, unless advised as to the length of time that they would be retained. Not only was the defendant’s testimony not contradicted in this respect, but it is evident that the court believed this testimony, for immediately before finding the defendant guilty it formulated the issue to be determined as follows: “ The Court is confronted, if I understand the testimony, with the question1—I want to be correct with this proposition ■— Is 'the defendant excused from producing those books of the corporation by reason of the action of the board of directors, as testified to by him? ” In finding the defendant guilty, the court answered that question in the negative.
We are not in accord with the court below in its disposition of tins question of law. The records which the defendant was subpoenaed to produce were not the defendant’s property. They were the property of the corporation of which he was the president. The defendant would have had no right against the opposition of those who, by law, were entitled to control their custody, to remove corporate records from the States of Delaware and Connecticut in order to deliver them into the State of New York. To hold that he was guilty of violating the statute in failing to do this would imply that he was required to purloin these records in other jurisdictions in order to bring them here. If the defendant had been instrumental in inducing the directors of the Public Service Holding Corporation to refuse their consent to the production of the books, a different question would be presented here. The record, however, contains no evidence of this. The action, therefore, of the directors of this foreign corporation in refusing *165to permit the production of records not within the jurisdiction of this State constituted a complete justification to the defendant for his failure to produce them.
The judgment should be reversed, the information dismissed, and the fine remitted.
Merrell, Townley and Glennon, JJ., concur; Finch, P. J., dissents and votes for affirmance.