People ex rel. Columbia Chemical Co. v. O'Brien

91 N.Y.S. 649 | N.Y. App. Div. | 1905

Chase, J.:

We are of the opinion that the name The Columbian Chemical Company ” so nearly resembles the corporate name of the relator that it is calculated to deceive and that the Secretary of State should have refused to file and record the proposed certificate of incorporation. (Gen. Corp. Law [Laws of 1892, chap. 687], § 6, as amd. by Laws of 1902, chap. 9.) The filing of the proposed certificate of incorporation is to effect an incorporation. (Gen. Corp. Law,. § 6.}. It is upon making, signing, acknowledging, and filing the certificate that a proposed corporation becomes a corporation. (Business Corp. Law [Laws of ' 1892, chap. 691], § 2, as amd. by Laws- of 1903, chap. 525, and Laws, of 1904,. chap. 446.) Assuming that the certificate of incorporation of said the Columbian Chemical Company was filed in the proper county clerk’s office on ,tlie same day that. it was filed in the Secretary of State's office, said the Columbian Chemical Company has been an incorporated company since February 16,1904. / If we now cancel and revoke the filing and record of the certificate effecting its incorporation we may complicate business transactions affecting not only the incorporators and stockholders, but also those who have done 'business with the corporation. '

In a case where the Secretary of State improperly determines that the name of a proposed corporation as stated in a certificate of incorporation presented to him for filing and record is the same as the name of an existing corporation, or that it so nearly resembles such name as to be calculated to deceive, and he refuses to file and record such proposed certificate, there may be- no adequate remedy to the persons or corporations claiming to be aggrieved other than by a review of such determination by a writ of certiorari. In such ease relief could be granted without complicating private interests. The remedy by certiorari is seldom if ever allowed where there is any other adequate remedy. (4 Ency. Pl. & Pr. 50; 6 Cyc. 742; People ex rel. Schuylerville & Upper Hudson R. R. Co. v. Betts, 55 N. Y. 600; People ex rel. Gage v. Lohnas, 54 Hun, 604; People ex rel. Trustees v. Board of Supervisors, 131 N. Y. 468.)

Where a certificate is filed with the same name as that of an existing corporation, or where the name.so nearly resembles that of the existing corporation as to be calculated to deceive, the action of the Secretary of State is not conclusive and the courts have frequently by a judgment in equity granted relief to a prior corporation aggrieved. (10 Cyc. 153; 7 Am. & Eng: Ency. of Law [2d ed.], 689; Society of 1812 v. Society of 1812, 46 App. Div. 568; Hygeia Water Ice Co. v. N. Y. Hygeia Ice Co., 140 N. Y. 94; Higgins Co. v. Higgins Soap Co., 144 id. 462.)

The writ of certiorari should be quashed, without costs.

All concurred.

Writ of certiorari quashed, without costs.