(dissenting). We must dissent and vote to affirm, substantially for the reasons set forth in the opinion of the learned Special Referee. However, in view of the majority opinion, it is appropriate to express an additional thought.
From the record before us, it is evident that no charge is made nor is there a scintilla of proof that the plaintiff’s security has been endangered or impaired in the slightest degree. Moreover, there is no indication from any single entry in the statement furnished to the plaintiff that gives rise to a suspicion of any impairment of the value of the security. In the absence of such a showing, we should not strain to extend the language of the contract to embrace the records of the subsidiary corporation. When the plaintiff sold his stock, he retained no further interest in the corporate business. The provision for the examination of the books of the defendant was intended solely for the purpose of enabling him to determine. whether the value of the stock he conveyed was impaired so as to endanger his collection of the balance of the purchase price. The Special Referee was quite correct in his conclusion that the plaintiff is not entitled to a “ fishing expedition ” on this record.
Botein, P. J., and Rabin, J., concur with Bergan, J.; M. M. Frank and Valente, JJ., dissent and vote to affirm in opinion.
Judgment reversed on the law and on the facts, and judgment for the plaintiff directed, with costs.
Settle order.