232 A.D. 346 | N.Y. App. Div. | 1931
This matter was presented to the Special Term and decided solely on the ground of similitude of corporate names under the General Corporation Law. In such case a peremptory mandamus order was not the proper remedy. Section 9 provides: “No certificate of incorporation of a proposed domestic corporation, and no statement and designation of a foreign corporation, having the same name as a corporation authorized to do business under the laws of this State or a name so nearly resembling it as to be calculated to deceive, shall be filed or recorded in any office for the purpose of effecting its incorporation, or of authorizing it to do business in this State; * * The duty of the Secretary of State under this section is not a ministerial duty alone; it requires a determination of a question of fact and the exercise of judicial discretion.
Before Brooks Clothes, Inc., could become a corporation and acquire the right to exercise corporate powers in the State it was necessary that it should comply with this provision; it must file its certificate, both in the Secretary of State’s office and in the clerk’s office of the county. (New York Cable Co. v. Mayor, etc., 104 N. Y. 1, 23.) It had not filed its certificate in the latter office. It was not a corporation de facto. (Von Lengerke v. City of New York, 150 App. Div. 98, 102; affd., 211 N. Y. 558.) The Secretary of State should have filed petitioner’s papers.
This court holds that Edward J. Flynn, the Secretary of State, upon payment of the proper fees, should file and record in his office the statement and designation of the petitioner, Brooks Clothing of California, Ltd., for authority to do business in this State and should issue to this petitioner the proper certificate.
The order should be affirmed, with fifty dollars costs and disbursements to the petitioner.
All concur.
Order affirmed, with fifty dollars costs and disbursements to the petitioner.
Since amd. by Laws of 1931, chap. 655.— [Rep.