22 N.Y.S. 631 | N.Y. Sup. Ct. | 1893
The certificate of incorporation of the Universal Thrift Company of New York is drawn under chapter 267 of the Laws of 1875, entitled “An act for the incorporation of societies or clubs for certain lawful purposes.” It was drawn and executed1 in this city, and the approval and consent to its filing by a justice of this court was annexed. The particular business and object of this corporation, as stated in its certificate, “is to establish and create a helpful opportunity for thrift among cash purchasers, upon their individual and family expenditures, by providing for commissions from tradesmen on cash sales, which are to benefit, through the , company, the purchasers.” The certificate approved by the justice of this court was forwarded to the secretary of state, who refused to file it upon the ground, as stated in the letter of his deputy, that “these objects are of a business nature, and are therefore not authorized under the act mentioned. [Chapter 267, Laws 1875.] Said act is for the incorporation of societies or clubs, and not for the carrying on of the business contemplated by the proposed corporation.” This application for a peremptory mandamus to compel the secretary of state to file such certificate was the result of the secretary’s refusal; and upon the application the motion was denied, without passing upon the other questions, upon the ground that it should have been made in the third district, which includes the city of Albany. The judge at special term relied upon the case of Mason v. Willers, 7 Hun, 23, which held that a motion for a mandamus to compel the secretary of state to file a certificate of incorporation can only be made in the third judicial district, or a county adjoining thereto. In the opinion by Talcott, J., attention is called to “the great incon
. We think, however, without passing upon that question, that the disposition made must, upon other grounds, be sustained. The claim that the secretary of state is a mere ministerial officer, and was bound by the approval of a justice of the supreme court, is not borne out by statute or authority. In People v. Nelson, 46 N. Y. 477, it was held “that the secretary of,state is not required to file a certificate for the organization of a corporation not authorized by the act;” and, further, that “a compliance with the act, as well in substance, by associating for one or more of the authorized objects, as in form, by signing and acknowledging a proper certificate stating the facts required, is a condition precedent to the right of the associates to avail themselves of the act, and place the certificate on file.” The .same case is also authority against appellant’s contention that the approval of a justice of the supreme court is conclusive upon the sec
If necessary to go further in order to dispose of the question, we should hold, upon the merits, that the conclusion reached by the secretary of state was right, for the reason that we do not think that chapter 267 of the Laws of 1875 was intended to embrace an incorporation such as was here proposed to be formed. Upon the authority, however, of People v. Nelson, supra, it is sufficient for the disposition of this appeal to say that the secretary of state had a right to pass upon the question as to the form of the certificate, and as to whether or not the relator was entitled to have the same filed under the statute under which the company was sought to be organized, subject, of course, to review in a proper proceeding,. and that the application to the special term to compel the secretary of state to resolve this in relator’s favor was properly denied. The order should therefore be affirmed, with costs and disbursements.
VAN BRUNT, P. J., and FOLLETT, J., concur upon the ground last stated.