People ex rel. Woodward v. Rosendale

The relator appeals from the order of the general term, third department, reversing order granting a writ of peremptory ihandamus, commanding the attorney-gen eral to attach his certificate of approval to the declaration and charter of a proposéd corporation; to he called “ the Sanitary Inspection and Insurance Company of Néw York,” the relator and others having sought to organize the 'same under chapter 690, Laws of 1892, known as “the Insurance Law.” Section 70 of said act provides for the incorporation of cómpanies to conduct the various kinds of insurance therein referred to by filing in the office of the superintendent of insurance a declaration and charter in manner and form as therein prescribed. Section 10 of said act reads as follows, viz.:'

“ When Application is made tó the superintendent of insurance by any persons desiring to become incorporated as an insurance corporation or for authority to transact the business of insurance in this state, under or pursuant to any declaration and charter presented’ for filing in the insurance department, or any amended declaration or charter required by law to be filed or approved by the superintendent, the superintendent shall not file such declaration and charter or grant such , certificate of authority until such declaration and charter shall have been examined by the attorney-general and certified by him to the superintendent to be in accordance with the requirements of law.”

In pursuance of this section the superintendent of insurance submitted the declaration and charter in the case at bar to the attorney-general to be examined by him and certified to be in accordance with th’e requirements of law. The attorney-general transmitted to" the superintendent of insurance an opinion in writing, reading in part as follows, viz.:'

“In‘reply, permit' me - to say that this application is made under subdivision 8, § 70 of the Insurance Law. The business proposed to be carried on is the inspection and certification as to the sanitary conditions of buildings and premises against loss or damage to life or health from causes arising from the imperfect sanitary conditions of such buildings or premises; the’insurance of ' landlords, lessees, tenants or occupants of houses,- flats,,office buildings or other structures from loss occasioned by imperfect plumbing, bursting pipes or leaks, to walls, ceilings, furniture or goods; and for the doing of such other business as may be lawfully- connected with the business of sanitary -inspection, care and insurance, under subdivision 8 of § 70, article 2 of chapter 690 of the Laws of 1892.

“In my opinion, this is not a kind of casualty insurance such

as is specified in any of the subdivisions of § 70; nor is it a kind of insurance that can be lawfully carried on under said section.

“I, therefore, decline to attach my certificate of approval to said proposed declaration and charter.”

The relator thereupon applied to the special term for a peremptory writ of mandamus to compel the attorney-general to certify to the superintendent of insurance 4hat the said declaration and charter were in accordance- with the requirements of law; this application was granted. The attorney-general appealed to the general term where the order was reversed, the court holding mandamus was not the proper remedy and refusing to consider the merits of the case.

As we are of opinion that the learned attorney-general correctly decided the question submitted to him, we do not deem it necessary to consider the question of remedy discussed in the courts below. The proposed company seeks to carry on as a part of an insurance business, according to its declaration, “ the inspection and certification as to the sanitary conditions of buildings and premises.” This is not insurance in any legal sense, but an entirely distinct kind of business not within the purview of the statute now under consideration. We, therefore, hold that the declaration and charter of the proposed company were not in accordance with the requirements of law, and are not entitled to be filed in the office of the superintendent of insurance. The general term order, for the reasons stated, is hereby affirmed, with costs.

Order affirmed.

All concur.