In re Barker

119 N.Y.S. 777 | N.Y. App. Div. | 1909

McLaughlin, J.:

Wendell P. Barker and others, the appellants, desired to form a corporation under the Business Corporations Law of the State of New York^* to do a general business as insurance agent or broker. They accordingly tendered to the Secretary of State a certificate of incorporation, together with the fees for filing and recording the same.' The name of the proposed corporation was stated in the certificate to be “Lloyds, New York, Incorporated.” The Secretary of State refused to file the certificate or accept the fees, on the ground that certain “ Lloyds ” companies were already lawfully doing business in the State. The. appellants then applied for a peremptory writ of mandamus to compel him to file and record the certificate: The application was denied and they appeal.

In opposition to the motion there was submitted an affidavit by the State Superintendent of Insurance from which it appeared that an unincorporated association or partnership known as “ Lloyds, New York,” was already doing an insurance business in the State of New York. The proposed corporation was to act as agent for this association and objections were made not only because of the similarity of the "names — which would be likely to deceive the public — but also on the groúnd that the association was not lawfully entitled to do an insurance business. The Superintendent of Insurance also objected to the name chosen for the corporation on the ground that the word “ Lloyds ” has become synonymous with “ insurance ” and that section 6 of the General Corporation Law (Consol. ■ Laws, chap. 23; Laws of 1909, chap. 28) provides that no' corporation shall be organized with the name “ insurance ” in it, except a corporation formed under the'Banking Law or the Insurance Law.

The object of the statute referred to was to prevent any. corporation, except one subject to the control of- the Insurance Department, from using in its corporate name the word “ insurance ” and posing as an insurance company, when it was not in fact.

It is strenuously urged by the appellants that the word “ Lloyds ” is not synonymous with “ insurance.” Nevertheless it is not and cannot be seriously denied that by the use of the word it has come to be so understood by the general public. That being so, if the proposed corporation is allowed to use the word “ Lloyds ” as a part of its corporate name, when it is not an insurance corporation and cannot do an insurance business, but simply act as agent, the result necessarily will be to deceive or mislead the public, and that is precisely what the statute was designed to prevent. It is true the statute does not expressly prohibit the use of the word “ Lloyds ” as a part of the name of a corporation, but its use would be none the less an imposition upon the public and contrary to public policy as indicated by the'statute.'/

■ I am of the opinion, therefore, that the Secretary of State was justified in refusing to file the certificate and the court did not err in denying the application for a peremptory writ to compel him to do so.

The order appealed from is affirmed, with ten dollars- costs and disbursements.

Ingraham, Clarke, Houghton and Soott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

* See Consol. Laws, chap. 4; Laws of 1909, chap. 12.— [Rep.