141 N.Y.S. 1018 | N.Y. App. Div. | 1913
On August 6, 1912, The Metropolitan Telephone and Telegraph Company, an organization incorporated under the laws of the State of Delaware, hereinafter called the Delaware corporation, made application to the New York Telephone Company, a domestic corporation located in the city of New York, engaged in the business of furnishing telephone service, for the installation of telephones in the applicant’s office in the city of New York. The applicant signed the usual contract required by the New York Telephone Company, and gave its check for the advance payment required. On or about the 22d day of August, 1912, the New York Telephone Company returned such contract, repaid such advance payment and refused to furnish telephone service to applicant, stating as the reason for such refusal that the corporate name of the applicant was the same as that of the predecessor of the New York Telephone Company.
On or about the 30th day of August, 1912, Metropolitan Telephone and Telegraph Company, a domestic corporation, hereinafter called the New York corporation, was duly incorporated, its certificate of incorporation being filed and recorded in the office of the clerk of the city and county of New York on that day.
On or about September 16, 1912, the New York corporation filed with the Public Service Commission, Second District, its complaint that the New York Telephone Company refused to furnish complainant telephone service at its office in the city of New York, and asking that the Commission make an order requiring the New York Telephone Company to install a switchboard and furnish such service. Thereupon the Commission forwarded a copy of the complaint to the New York Telephone Company, accompanied by an order requiring that the matters complained of be satisfied by said company or that the charges made in said complaint be answered in writing by said company. The New York Telephone Company duly answered said complaint putting in issue the allegations as to the incorporation of complainant, alleging that the application for such service was made by the Delaware corporation having the same name as the complainant; that the New York Tele
The matter came on for hearing before the Public Service Commission October 14, 1912, the Metropolitan Telephone and Telegraph Company of New York and the New York Telephone Company each appearing by counsel. On October 15, 1912, said Commission granted an order that the New York Telephone Company furnish telephone service to the complainant and place complainant’s name in its directory upon complainant complying with all reasonable rules and regulations and making payment for such service one month in advance, and that the New York Telephone Company notify the Com
At or about the same time the said original corporation presented to the Public Service Commission its petition for leave to intervene, alleging in general the grounds therefor, stated in the said petition of the New York Telephone Company, and alleging that the purpose of incorporating the New York State corporation was the sequestrating and holding within the State of New York the said corporate name with the fraudulent and unlawful design of interfering with or preventing the original corporation from using its own corporate name. To the petition of the New York Telephone Company for a rehearing the New York corporation interposed its answer. On the 11th day of November, 1912, the Public Service Commission granted orders denying the petition of the original corporation to intervene and also denying the petition of the New York Telephone Company for a rehearing. On or about the 29th day of November, 1912, said original corporation filed with said Commission a petition for a rehearing of the application for leave to intervene, which on or about the second day of December said Commission denied. On the third day of December the New York Telephone Company obtained a writ of certiorari to review the aforesaid action of the Public Service Commission, and on the sixth day of December said original corporation also obtained a writ of certiorari for a like purpose. Returns
I think that the orders granted by the Public Service Commission were warranted and that its action should be confirmed.
As to the defense interposed by the answer of the New York Telephone Company that the application for telephone service was made by the Delaware corporation and not by the New York corporation, there is no merit. No application whatever for telephone service was required before filing the complaint. In fact no complaint was necessary, as the Commission had the right to act of its own motion. (Pub. Serv. Comm. Law [Consol. Laws, chap. 48; Laws of 1910, chap. 480], §§ 96, 97, added by Laws of 1910, chap. 673; City of Troy v. United Traction Co., 202 N. Y. 333.) The complaint purported to have been made by the New York corporation, and while it alleged the doing by it of certain acts which were in fact done by the Delaware corporation, yet the answer thereto recognized the complainant as the New York corporation, and the hearing was had before the Public Service Commission upon that theory. In fact, it is practically immaterial which company made the complaint, as the representative of the respondent stated at the hearing that the New York Telephone Company would not put the name Metropolitan Telephone and Telegraph Company in its directory for anybody.
As to the contention of the New York Telephone Company, and of the original Metropolitan Telephone and Telegraph Company, that the New York corporation had not the right to use the name of the original Metropolitan Company, it appears as hereinbefore stated that the original Metropolitan Company was voluntarily dissolved in August, 1896, pursuant to the provisions of chapter 932 of the Laws of 1896 (adding to Stock Corp. Law [Gen. Laws, chap. 36; Laws of 1892, chap. 688], § 57; since amended by Laws of 1900, chap. 760; now Gen. Corp. Law [Consol. Laws, chap. 23; Laws of 1909, chap. 28], § 221). Thereafter its existence and power to act as a corporation was limited by that statute to satisfying any existing obli
The decision of the Public Service Commission was correct. However, since the decision was made an action in equity has been brought by the original corporation, its directors and trustees, a holder of its bonds, and the New York Telephone Company against said New York and Delaware corporations to restrain them from using said corporate name, in which action the Appellate Division of the First Department has recently enjoined the use of such name by the defendants during the pendency of the action. (Metropolitan Tel. & Tel. Co. v. Met. Tel. & Tel. Co., 156 App. Div. 577.) While the action of the Public Service Commission should be confirmed, the order that the New York Telephone Company shall furnish telephone service to the New York corporation and place its name in its directory should not be effective during the period within which an injunction restraining the New York corporation from using such name shall be in force.
The action of Public Service Commission should be confirmed, with fifty dollars costs and disbursements, the order granted by the Commission not to be effective, however, while an injunction restraining the New York corporation from using said name shall be in force.
All concurred.
Determination of the Public Service Commission confirmed, with fifty dollars costs and disbursements, the order granted by the Commission not to be effective, however, while the injunction granted by the Appellate Division, First Department, in the action referred to in the opinion herein shall be in force.