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The People of the State of New York, represented in Senate and
The general corporation law is amended to read as follows, to take
THE GENERAL CORPORATION LAW,
because it is contained in section 1, art. 8. of state Constitution.
The right to sue and be sued is found in section 3, art. 8, of the state Constitution.
82. Classification of corporations.-Acorporation shall be either,
1. A municipal corporation,
4. A mixed corporation.
1. A monied corporation,
3. A business corporation.
1. A religious corporation, or
2. A membership corporation.
1. A cemetery corporation,
5. An agricultural and horticultural corporation. A transportation corporation shall be either,
1. A railroad corporation, or
2. A transportation corporation other than a railroad corporation. A membership corporation shall include benevolent orders and fire and soldiers' monument corporations.
A reference in a general law to a class of corporations described in accordance with this classification shall include all corporations theretofore formed belonging to such class.
$ 3. Definitions.- 1. A municipal corporation includes a county, town, school district, village and city, and any other territorial division of the State established by law with powers of local government.
2. A stock corporation is a corporation having a capital stock divided into shares, and which is authorized by law to distribute to the holders thereof dividends or shares of the surplus profits of the corporation. A corporation is not a stock corporation because of having issued certificates called certificates of stock, but which are in fact merely certificates of membership and which is not authorized by law to distribute to its members any dividends or share of profits arising from the operations of the corporation.
3. The term non-stock corporation includes every corporation other than a stock corporation.
4. A moneyed corporation is a corporation formed under or subject to the banking or the insurance law.
5. A domestic corporation is a corporation incorporated by or under the laws of the State or colony of New York. Every corporation which is not a domestic corporation is a foreign corporation, except as provided by the code of civil procedure for the purpose of construing such code.
6. The term directors, when used in relation to corporations, shall include trustees or other persons, by whatever name known, duly appointed or designated to manage the affairs of the corporation.
7. The term, certificate of incorporation, shall include articles of association or any other written instruments required by law to be filed, to effect the incorporation of a corporation, including a certified copy of an original certificate of incorporation filed for such purpose in pursuance of law.
8. The term, member of a corporation, shall include every person having a right to vote at a meeting of the corporation for the election of directors, other than a person having a right to vote only upon a proxy.
9. The term, office of a corporation, means its principal office within the State or principal place of business within the State, if it has no principal office therein.
10. The term, business of a corporation, when used with reference to a non-stock corporation, includes the operations for the conduct of which it is incorporated.
11. The term, corporate law or laws, when used in any law forming a part of the revision of the general laws of the State of which this chapter is a part, means the general laws of this State relating to corporations included in such revision.
Am'd by chap. 672 of 1895. Took effect May 14, 1895.
The right to be a corporation is a distinct, independent franchise, complete within itself, and having no necessary connection with other distinct fran. chises, which are the subjects of legislative grants. Southern P. R. Co. v. Ortow, 32 Fed. Rep., 457.
$ 4. Qualifications of incorporators.—A certificate of incorporation must be executed by natural persons, who must be of 'full age, and at least two-thirds of them must be citizens of the United States and one of them a resident of this State. This section shall not apply to a corporation formed by the reincorporation or consolidation of existing corporations, or to the reorganization of a corporation upon the sale of the property and franchises of a previously existing corporation or otherwise.
Am'd by chap. 672 of 1895. Took effect May 14, 1895.
§ 5. Filing and recording certificates of incorporation.Every certificate of incorporation and amended or supplemental certificate hereafter executed shall be in the English language, and except of a religious, cemetery, moneyed, municipal or fire department corporation, shall be filed in the office of the secretary of state, and shall be by him duly recorded and indexed in books specially provided therefor; and a certified copy of such certificate or amended or supplemental certificate with a certificate of the secretary of state of such
filing and record, or a duplicate original of such certificate or amended or supplemental certificate shall be filed and similarly recorded and indexed in the office of the clerk of the county in which the oflice of the corporation is to be located, or, if it be a non-stock corporation, and such county be not determined upon at the time of executing the certificate of incorporation, in such county clerk's office as the judge approving the certificate shall direct. All taxes required by law to be paid before or upon incorporation and the fees for filing and recording such certificate must be paid before filing. No corporation shall exercise any corporate powers or privileges until such taxes and fees have been paid.
Am'd by chap. 672 of 1895. Took effect May 14, 1895. See section 7, chap. 611 of 1875, and section 1, chap. 22 of 1881, both repealed by this act.
The right to file in the office of Secretary of State, a certificate, 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. People ex rel. Blossom o. Nelson, 46 N. Y., 477. The Secretary of State is not required to file a certiticate unauthorized by the act. Id.
As to what was a sufficient designation of the business of the corporation in the certificate under chap. 40 of 1848, see People ex rel. Belknap v. Beach, 19 Hun, 259.
The certificate is conclusive as to location therein designated, as that of the principal office of the company. Western Transportation Co. v. Scheu, 19 N. Y. 408; Oswego Starch Factory v. Dolloway, 21 id., 449 ; Union Steamboat Co. v. City of Buffalo, 82 id., 351.
It is immaterial that the principal office or place for transacting the financial concerns of the company is located in a different town or city. Oswego Starch Factory v. Dolloway, 21 N. Y., 449.
The filing of the certificate in the office of the county clerk is sufficient to effect the incorporation. Raisbeck v. Oesterricher, 4 Abb. N. C., 444 ; Cross v. Pinckneyville Mill Co., 17 Ill., 54; Tarbell v. Page, 24 iil., 48; Stone v. Great Western Oil Co., 41 id., 85; Thompson v. Candor, 60 id., 248 ; Willard v. Trustees, etc., 66 id., 55.
An omission to file the duplicate in the office of the Secretary of State does not, in such case, vitiate the incorporation so as to render the members partners as between themselves. Raisbeck 0. Oesterricher, ante.
An organization, such as will create a corporation de jure, and can successfully maintain itself against inquiry on the part of the state, does not exist, until the certificates of association are filed in accordance with law. Childs v. Smith, 46 N. Y., 34; rev'g 38 How., 328; 55 Barb., 45.
The office thus designated is the one which fixes the location of the company for the purpose of taxation upon its capital ; Western Transportation Co. v. Scheu, 19 N. Y., 408; even though such designation was made for the purpose of avoiding taxation at its principal business office. Id; Oswego Starch Factory v. Dollaway, 21 id., 449; Union Steamboat Co. v. City of Buffalo, 82 id., 331.
But no corporation shall exercise any corporate powers or privileges until all taxes, required by law to be paid before incorporation, and the fees for filing and recording the certificate are paid. Section 3, chap. 563 of 1890.
Parties cannot take charter with which they have no concern and effect corporation de facto by pretense of user thereunder. Welch v. 0. D. M. & R. Co., 31 N. Y. State Rep., 916.
Facts establishing that defendants occupied position, not of vendors, but of trust and confidence towards plaintiffs. Brewster v. Hatch, 122 N. Y., 349.
Promoters of corporation, before its organization, occupy position of trust and confidence towards those whom they induce to invest in enterprise, and are liable for damages sustained by reason of their acts. Id.
Sf. Corporate names.- No certificate of incorporation of a proposed corporation having the same name as an existing domestic