Hyperlawhypertext legal database People ex rel. Columbia Chemical Co. v. O'Brien 101 A.D. 296

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

101 A.D. 296 Court N.Y. App. Div. English

Delivered by Chase, J.:

Contents

Majority

p. 296
The People of the State of New York ex rel. Columbia Chemical Company, a Domestic Corporation, Relator, v. John F. O’Brien, as Secretary of State of the State of New York, Respondent.

Headnote

Corporate name —use Of one calculated to deceive— “‘Columbia Chemical Company,” an existing, and “The Columbian Chemii^l. Company,” a proposed corporation, — duty of- the Secretary of State not to file the second remedy in case he does-~ certiorari and suit in equity.
The Dame “ The Oolurilbian Chemical Company,” stated in a certificate of incorporation as the name of a proposed corporation, so nearly resembles the name. “Columbia Chemical .Company,” which hadbeen adopted by an existing cor- . potation, that it is calculated to deceive,, andit is the duty of- the Secretary of: State, under section 6 of the General Corporation Law (Laws of 1892, chap..
p. 297
687, as amd. by Laws of 1902, chap. 9), to refuse to file the certificate of incorporation.
Where, however, the Secretary of State does file and record the proposed certificate of incorporation and the cancellation thereof may complicate business transactions affecting not only the incorporators and stockholders but those who have had dealings with the corporation so formed, relief will not be afforded to the aggrieved corporation under a writ of certiorari, as the action of the Secretary of State is not conclusive and the aggrieved corporation has an adequate remedy by an action in equity.
Semble, that a writ of certiorari may be issued to review the action of the Secretary of State in refusing to file and record a certificate of incorporation on the ground that the llame of the proposed corporation is the same as that of an existing domestic corporation or so nearly resembles -such name as to be calculated to deceive.
The remedy by certiorari is seldom, if ever, allowed where there is any other adequate remedy.
Certiorari issued out of the Supreme Court and attested on the' 28th day of May, 1904, directed to John F. O’Brien, as Secretai-y of State of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the filing of a certificate of incorporation of “ The Columbian Chemical Company.” The “ Columbia Chemical Company ” was duly incorporated in this State on the 17th day of March, 1902, and the object of such corporation is to manufacture, sell and deal in chemicals.
On the 16th day of February, 1904, there was filed and recorded in the office of the Secretary of State a certificate of incorporation of “ The Columbian Chemical Company ; ” the ob ject of such corporation is to purchase and sell drugs, chemicals and chemical compounds of every name, nature and description, to mix, compound, and prepare the same into medicines, remedies and other forms for use and sale, and for other things.
On the 25th day- of February, 1904, the Columbia Chemical Company wrote to the Secretary of State in which letter it states that it is informed- that a certificate of incorporation has been granted to the Columbian Chemical Company to deal in chemicals, and it further says: “ Is not this title so similar to that of the Columbia Chemical Co., as to bring it under the statute prohibiting the ¿ranting of such certificate ? Awaiting your advice on this, we remain,”
p. 298
On the 26th day of February, 1904, the Secretary of State, through his second deputy, replied to said letter,, in which reply he acknowledged the receipt of the letter of February twenty-fifth and further says: “ We do not think the corporate title is so similar to that of your company as to bring it within the prohibition imposed by Section 6 of the General Corporation Law.” This writ óf certiorari is to review the action of the Secretary of State. -\
George B. Goldschmidt and Edward Goldschmidt, for the relator.
John Cunneen, Attorney-General, and William H. Wood, Deputy Attorney-General, for the respondent.
Frank S. Becker, for the Columbian Chemical Company.

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

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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.

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