The People Ex Rel. v. . Nelson , 46 N.Y. 477 ( 1871 )

The act for the incorporation of benevolent, charitable, scientific and missionary societies (chap. 319 of the Laws of 1848), authorizes any five or more persons, who shall desire to associate themselves "for benevolent, charitable, literary, scientific, missionary or mission or other Sabbath school purposes, to make, sign and acknowledge and file in the office of the Secretary of State, and also in the office of the clerk of the county in which the business of such society is to be conducted, certificates in writing, stating the name by which the society shall be known, the particular business and objects of such society, the number of trustees, etc., and declares that, upon filing such certificate, the persons who shall have signed and acknowledged the same, and their associates and successors, shall thereupon be a body politic and corporate," etc.

A corporation cannot be formed under this act, except for some or one of the purposes named in it, and the right to file a certificate in the office of the Secretary of State, by which a body politic and corporate is to be ipso facto created, only exists in behalf of those who bring themselves within the terms of the act, and do in fact associate themselves for some of the benevolent, literary or religious objects contemplated.

The Secretary of State is not required to file a certificate for the organization of a corporation not authorized by the act.

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 object and purposes of the "Mutual Reliance Society," as set forth in the certificate of association, are clearly not among those specified in the act, and for which corporations may be created under it. It is evidently a corporation for business purposes, having in view pecuniary gain and profit to the corporators. It may contemplate the promotion of the temporal interests of others, but such object is merely incidental to the chief end of the association. The consent and approbation of a justice of the Supreme Court, required by the act, as but one of the conditions precedent to the right to file the certificate, and is cumulative to the other requisites of the act, but decides nothing, and is not conclusive either upon the public or the Secretary of State. The relators have not established a right to file this certificate under the act for the formation of benevolent, charitable, literary or religious societies, and the Secretary of State was justified in declining to file the same. It did not properly belong to the records of his office.

The order of the General Term must be reversed, and that of the Special Term affirmed, with costs.

CHURCH, Ch. J., ALLEN, GROVER and PECKHAM, JJ., concur; FOLGER, J., dissents; RAPALLO, J., not voting.

Order reversed.