People ex rel. United States Grand Lodge of Order of Brith Abraham v. Payn

Majority

p. 851

(28 Misc. Rep. 275.)

PEOPLE ex rel. UNITED STATES GRAND LODGE OF ORDER OF BRITH ABRAHAM v. PAYN.

(Supreme Court, Special Term, Albany County.

July, 1899.)

Headnote

1. Reincorporation of Mutual Benefit Society—Filins of Declaration

and Statement—Duty of Superintendent—Mandamus.

Under Insurance Law, art. 7, § 231 (Laws 1892, c. 690), giving to any mutual benefit fraternity incorporated under the laws of the state the right to reincorporate by filing with the superintendent of insurance a' declaration and sworn statement, as required by law, providing that the superintendent shall file said declaration and statement, and refer the same to the attorney general for his certificate of conformity and approval, and upon return thereof the superintendent shall record the same, with the certificate of the attorney general, in his office, and deliver to such corporation a certified copy of the papers so recorded, together with his license to carry on the work of a fraternal beneficiary society, the filing of the declaration and statement is a ministerial duty of the superintendent, and may be compelled by mandamus.

2. Same.—Use of Former Name.

Under General Corporatibn Law, § 6 (Laws 1892, c. 687), providing that a corporation formed by reincorporation may have the same name as the corporation to whose franchise it has succeeded, an incorporated mutual benefit fraternity has the right to the use of its original name on reincorporation under Insurance Law, art. 7, § 231 (Laws 1892, c. 690), providing that any mutual benefit fraternity incorporated under the laws of the state may reincorporate.

8. Same—Mandamus.

Where the superintendent of insurance refuses to file the declaration and statement on reincorporation on the ground that the name of the petitioner-is similar to that of an association already recognized by the insurance department, he may be compelled so to do by mandamus.

Application by the people, on the relation of United States Grand Lodge of the Order of Brith Abraham, against Louis F. Payn, for a peremptory writ of mandamus to compel the latter, as superintendent of insurance, to file the declaration and statement presented to him by the petitioner, and refer the same to the attorney general for his •certificate.

Application granted.

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H. M. Gfoldfogle (T. E. Hancock, of counsel), for relator.

John G. Coyne, opposed.

This is an application for a peremptory writ of mandamus to compel the respondent, as superintendent of insurance, to file the declaration and statement presented to him by the petitioner, and refer the same to the attorney general for his certificate under section 231 of article 7 of the insurance law (Laws 1892, c. 690). The purpose of the petitioner is to procure a reincorporation under the law. It appears that the petitioner was organized in the year 1859, and continued as an unincorporated association until 1888, when it was duly incorporated as a mutual benefit fraternity under the name of the United States Grand Lodge of the Order of Brith Abraham. In the year 1887 some of the members of this body withdrew from the order, and instituted what is known as the Independent Order of Brith Abraham, which was incorporated under that name February 7, 1887. The latter body was reincorporated under the provisions of section 231 of the insurance law on August 2, 1894. The petitioner, desiring to also reincorporate itself, prepared its declaration in all respects as required by section 231, and requested the respondent, pursuant to that section, to file the same, and refer the same to the attorney general for his certificate of conformity and approval. The respondent has refused this request on the ground that the Independent Order of Brith Abraham had been recognized by the insurance department, and that the similarity of names would be misleading and confusing to the public. It is urged here in support of the determination of the superintendent that, under the statute, he has a discretion to perform, the exercise of which cannot be controlled by mandamus. As I read the statute, the duty of the superintendent in this respect is a ministerial one. The statute provides, with reference to reincorporation of existing fraternities (article 7, § 231), that any mutual benefit fratérnity incorporated under the laws of the state may reincorporate under the provisions of the chapter by filing with the superintendent a declaration and sworn statement as required by the section. No question is e made here as to the sufficiency of the statement and declaration.' The statute in the same section then proceeds:

“The superintendent shall file said declaration and statement, and refer the same to the attorney-general for his certificate of conformity and approval, and upon the return thereof the superintendent shall record the same with the certificate of the attorney-general in his office, and deliver to such corporation, association or society a certified copy of the papers so recorded, together with his license to carry on the work of a fraternal beneficiary society, order or association as proposed in such declaration. Upon filing the same in the office of the clerk of the county wherein the principal office for the transaction of its business is located, it shall thereupon be duly incorporated under the provisions of this article.”

There is nothing in this section conferring any discretion upon the superintendent with reference to the filing of such declaration and statement, and the reference of the same to the attorney general, but the language of the section is peremptory that the superintendent shall file such declaration and statement, and refer the same to the

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attorney general. While section 6 of the general corporation law (Laws 1892, c. 687) provides that “no certificate of incorporation of a proposed corporation having the same name as an existing domestic corporation, or a name so nearly resembling it as to be calculated to deceive, shall be filed or recorded in any office for the purpose of effecting its incorporation,” the same section provides that “a corporation formed by the reincorporation, reorganization or consolidation of other corporations, or upon a sale of the property or franchise of a corporation, may have the same name as the corporation or one of the corporations to whose franchises it has succeeded.” So here is the express legislative authority giving this existing corporation the right to the use of its original name upon reincorporation. This authority, together with the right given by section 231 of the insurance law to any incorporated mutual benefit fraternity to reincorpórate under its provisions, and the legislative mandate requiring the superintendent to file the declaration and statement required by law, and to refer the same to the attorney general, indicates clearly to my mind that the respondent has misconstrued the law in denying to the petitioner the right to have its declaration filed and referred to the attorney general. The peremptory mandamus prayed for is granted, but, as there is nothing to indicate that the refusal of the superintendent was not made in good faith, it should be without costs.

Application granted, without costs.