128 N.Y.S. 561 | N.Y. Sup. Ct. | 1911
“A certificate of incorporation must be executed by natural persons, who must be of full age, and at least two-
It is plain that without such approval the incorporation is •absolutely ineffective. What, then, should merit approval? Is the presentation of a certificate containing the hare formula prescribed by the statute'sufficient, or should there be proof of compliance with the elemental substance of the law? Strictly speaking, the act of approval by the justice is not a judicial act. It was within the power of the Legislature to confer that authority on any ministerial officer, but having conferred it on a judicial officer it is -a legitimate inference that it was so conferred with a purpose, and that is, that the judicial officer from his professional training and habit of thought should apply those tests and rules to the certificate which are applied in judicial procedure in order to ascertain facts, as distinguished from mere assertion, and ■this inference is strengthened by the nature of the circumstances.
The Legislature has prescribed simple means by which an artificial entity may he created, -and, when created, endowed with certain powers and privileges. What more reasonable than that before imparting legal life there should he judicial scrutiny of those qualifications which the law makes essential, and not a -mere perfunctory passing on what may be presented. The very act of approval imports that the justice sanctions and accepts as satisfactory the instrument which is required by law to receive his approbation (Black L. Diet.) and this sanction and acceptance cannot he given even to a ministerial act unless there he applied to its performance judicial tests and principles. ,
It may be pointed out that it is improper to fix a definite date for the holding of the annual meeting, as that date may fall on Sunday, and the law discountenances the use of that day for such purposes.
Approval refused, with leave, however, to renew application upon certificate supported by averments as indicated.
Ordered accordingly.