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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. A corporation formed by the reincorporation, reorganization or consolidation of other corporations or upon the sale of the property or franchises of a corporation, may have the same name as the corporation or one of the corporations to whose franchises it has succeeded. No corporation shall be hereafter organized under the laws of this State with the word bank, insurance, indemnity, guarantee or benefit as part of its name, except a corporation formed under the banking law or the insurance law.
Am'd by chap. 672 of 1895. Took effect May 14, 1895.
See section 1, chap. 135 of 1870, and section 4, chap. 611 of 1875, both repealed; and also chap. 322 of 1870, as amended by chap. 280 of 1876, and chap. 38
The Secretary of State must decide in the first instance whether the proposed name is, or is not, within the statutory prohibition. State v. McGrath, 5 S. W. Rep., 29. He will not be compelled by mandamus to file the certificate, until it is shown that the law has been complied with by the association in the selection of its name. Id.
Change of corporate name, on application, rests in the careful discretion of the court. Matter of Bank of Attica, 35 N. Y. St. Rep., 708.
Granting or refusing order permitting corporation to change name is discretionary Matter of United S. M. R. Co., 24 N. Y. St. Rep., 548.
Appellate court may redress abuse of such discretion. Id.
Change of corporate name will be denied, when proposed name will infringe upon name of another company in same business. Matter of United States M. R. & C. Ass'n, 22 N. Y. St. Rep., 494.
Com. Ass. Co. v. Smith, 18 N. Y. St. Rep., 151; Trust Co. v. Trust Co., 1 N. Y. Supp., 44; Matter of U. S. Mer. R. & C. Ass'n, 22 N. Y. St. Rep., 494.
§ 7. Amended and supplemental certificates.-If in the original or amended certificate of incorporation of any corporation, or if in a supplemental certificate of any corporation any informality exist, or if any such certificate contain any matter not authorized by law to be stated therein, or if the proof or acknowledgment thereof shall be defective, the corporators or directors of the corporation may make and file an amended certificate correcting such informality or defect or striking out such unauthorized matter; and the certificate amended shall be deemed to be amended accordingly as of the date such amended certificate was filed, and upon the filing of such an amended certificate of incorporation, the corporation shall then for all purposes be deemed to be a corporation from the time of filing the original certificate.
The supreme court may, upon due cause shown, and proof made, and upon notice to the Attorney-General, and to such other persons as the court may direct, and upon such terms and conditions as it may impose, amend any certificate of incorporation which fails to express the true object and purpose of the corporation, so as to truly set forth such object and purpose.
When an amended or supplemental certificate is filed, an entry shall be made upon the margin of the index and record of the original certificate of the date and place of record of every such amended certificate.
The amendment of a certificate under this section shall be without prejudice to any pending action or proceeding, or to any rights previously accrued.
Former section 5 amended.
See sections 1, 2, chap. 135, of 1870, both repealed by this act.
This section is intended, it seems, to enable companies to remedy patent omis'sions; that is, the omission of things which are required to be stated, and which, being omitted, make the certificate imperfect on its face. Matter of N. Y., L. & W. R. R. Co., 25 Hun, 556.
§ 8. Lost or destroyed certificates. — If either of the certificates of incorporation shall be lost or destroyed after filing, a certified copy of the other certificate may be filed in the place of the one so lost or destroyed and as of the date of its original filing, and such certified copy shall have the same force and effect as the original certificate had when filed.
Former section 6 without change.
§ 9. Certificate and other papers as evidence.-The certificate of incorporation of any corporation duly filed shall be presumptive evidence of its incorporation, and any amended certificate or other paper duly filed or recorded relating to the incorporation of any corporation, or its existence or management, and containing facts required or authorized by law to be stated therein, shall be presumptive evidence of the existence of such facts.
Am'd by chap. 672 of 1895. Took effect May 14, 1895.
See section 9, chap. 40, of 1848, now repealed.
A copy of the certificate of incorporation filed in pursuance of the act, certified by the county clerk, etc., is presumptive legal evidence of the incorporation, and of the appointment of the trustees. Squires v. Brown, 22 How., 35.
See section 933 of the Code of Civil Procedure. This section provides that a duly certified copy of such certificate is evidence as though the original is produced. The originals are made evidence by this act.
The production of a copy of the certificate of incorporation filed with the county clerk, duly certified by him, is sufficient proof of corporate existence and sufficient answer to all allegations of non-incorporation, except in a direct proceeding by the state to annul the franchise. Kingsley v. City of Brooklyn, 4 Abb. N. C., 444; Jones v. Dana, 24 Barb., 398.
This section does not exclude other modes of proving the fact of incorporation. N. Y. Car-Oil Co. v. Richmond, 6 Bosw., 213. Where no certificate can be found in the county clerk's office, it is competent to prove by oral evidence that a certificate was in fact filed, and to produced in evidence a sworn copy thereof. Id. A duly authenticated copy of the duplicate filed in the office of the Secretary of State, with oral proof that a like certificate was filed with the county clerk, is sufficient.
All that a corporation is called upon to prove, to establish its existence, in a litigation with individuals dealing with it, is its charter and uses under it. Jones v. Dana, 24 Barb., 395.
What acts are sufficient to establish the existence of a corporation de facto. De Witt v. Hastings, 8 J. & Sp., 463; 69 N. Y., 618.
Bank, by receiving and collecting checks drawn in favor of corporation, is estopped from denying its corporate character. C. M. Co. v. Mer. Bk., 59 Hun,
Those dealing with body professing to be corporation can not question its corpo
rate existence for the purpose of charging its members individually as partners. Pemarest v. Flack, 16 Daly, 337.
Stockholders are estopped to deny the lawful existence of corporations which they have helped to create. Dorris v. French, 4 Hun, 292.
A person, who has subscribed for the stock, acted as a trustee of the corporation, took part in its management and contracted with it as a corporation, can not dispute the validity of the incorporation in an action under this section. Phoenix W. Co. v. Badger, 67 N. Y., 294; Eaton v. Aspinwall, 19 id., 119; Buffalo, etc.. R. R. Co. v. Cary, 26 id., 75; Aspinwall v. Sacchi, 57 id., 331; White v. Ross, 15 Abb, 66.
§ 10. Limitation of powers.-No corporation shall possess or exercise any corporate powers not given by law, or not necessary to the exercise of the powers so given. The certificate of incorporation of any corporation may contain any provision for the regulation of the business and the conduct of the affairs of the corporation, and any limitation upon its powers, or upon the powers of its directors and stockholders, which does not exempt them from the performance of any obligation or the performance of any duty imposed by law.
Am'd by chap. 672 of 1895. Took effect May 14, 1895.
See section 3, title 3, chap. 18, part 1, R. S., now repealed.
Everything relating to the organization of a private corporation is mere matter of individual contract. Troy & R. R. R. Co. v. Kerr, 17 Barb., 581. The compact, which is to clothe its members with an artificial, corporate existence, must receive the voluntary assent of the whole. Id. The rule is the same as to amendments to the charter or act of incorporation. Id.
Unless restrained by law, every corporation has the incidental power to make any contract necessary to advance the objects for which it was created. Legrand v. Man. Mer. Ass'n, 80 N. Y., 638.
A corporation has no other powers than such as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted. People ex rel. Attorney-General v. Utica Ins. Co., 15 Johns., 358.
Corporations can exercise no powers over the corporators beyond those conferred by the charter to which they have subscribed, except on the condition of their agreement or consent. Hartford & N. H. R. R. Co. v. Croswell, 5 Hill, 383. Corporations have all the powers of ordinary parties as respects their contract, except when they are restricted expressly or by necessary implication. Brady v. Mayor, etc., 1 Barb., 590.
Corporations can only exercise the powers expressly or incidentally conferred. Curtis v. Leavitt, 15 N. Y. 9, 54.
Corporations have no other powers than such as are expressly granted, or such as are necessary to carry into effect. the powers expressly granted. Hodges v. City of Buffalo, 2 Denio, 110.
A corporation under this act, can purchase, hold and convey, any real or personal estate necessary, to enable it to carry on its transactions. De Groff v. American Linen Thread Co., 21 N. Y., 124.
The manufacturing of goods, necessarily implies the power of disposing of them when manufactured, and also of receiving in payment money, or property readily convertible into money, or provisions or stores, for the payment of its employees. Id.
A corporation, after having received from the other contracting party the full consideration, can not be permitted to interpose the defense of ultra vires, in order to excuse itself from that portion of the contract which imposes upon it an obligation. Id. Rider Life Raft Co. v. Roach, 97 id, 378.
Manufacturing corporation cannot become accommodation endorser. Nat. Park Bk. v. G. A. M. W. & S. Co., 116 N. Y., 281; rev'g 21 J. & S., 367.
Fact that maker has note discounted, is notice to bank.
Where accommodation paper, executed in name of president, has been ratified by stockholders, and no other rights intervene, it may be enforced against cor poration. Martin v. N. F. P. Co., 122 N. Y., 165.
Corporation can not make accommodation endorsement. Wahlig v. S. P. M. Co., 25 N. Y. St. Rep., 864.
Act of treasurer is presumed to be, in such case, ultra vires. Id.
Corporation can not become surety on lease. Filon v. M. B. Co., 38 N. Y. St. Rep, 602.
Railroad corporation has power to make a lease for a term of years. Beveridge v. N. Y. E. R. R. Co., 112 N. Y., 1.
Stockholders are not parties to lease of railroad to another company. Id.
Directors have power to make necessary reduction of rental reserve in lease, if done in good faith. Id.
Section 1778 of Code does not apply to action against corporation as endorser. Shorer v. T. P. & P. Co., 119 N. Y., 483; 24 N. Y. St. Rep., 868.
In absence of any prohibition, express or implied, repurchase of landscript by company, without intending to cancel or retire it, will not prevent company from using it again, consistently with rights of stockholders and company itself. Rogers v. Phelps, 31 N. Y. St. Rep., 872.
Columbia Bank v. Jack
Banking association may sue in its corporate name.
son, 24 N. Y. St. Rep., 738.
Persons dealing with corporation, is chargeable with notice of its powers and extent of power and authority of its agents or officers. Jemison v. Citizens' S. Bk., 122 N. Y., 135.
Speculative contracts for sale or purchase of stock by savings bank are ultro vires. Id.
Authority to buy and sell exchange, bullion., etc, does not embrace speculative contracts in cotton futures. Id.
Corporation can not be held liable for goods sold to company of sam name, on ground of identity, where it was organized after such sale and has different officers and stockholders with single exception. Wyckoff v. U. L. & T. Co., 33 N. Y. St. Rep., 422.
When burden is on receiver to show that corporate contract was not authorized or ratified by trustees. Patterson v. Robinson, 116 N. Y., 193.
Plea of ultra vires is no defense, where corporation has executed contract in good faith and party has reaped benefit. Watts C. Co. v. Yuengling, 51 Hun, 302.
Defense of ultra vires, based upon foreign statutes, must be pleaded. Griesa v Mass. B. Ass'n, 39 N. Y. St. Rep., 1.
Non-resident plaintiff may sue foreign corporation in courts of this state, when cause of action arose here. Id.
Where validity of ultra vires contract is recognized, and performance accepted by company, court will not deny party benefit of its provisions. Palmer v. C. H. Cem., 122 N. Y., 429.
Where compromise agreement expressly states that it is made on behalf of such certificate-holders as should assent thereto, it binds assenting holders only. Humphreys v. N. Y., L. E. & W. R. R. Co., 21 N. Y. St. Rep., 750.
A party, dealing with a corporation, is presumed to know the extent of its cor porate powers. Akin v. Blanchard, 32 Barb., 527; Adriance v. Roome, 52 Id.. 399; Dabney v. Stephens, 40 How., 341; Alexander v. Cauldwell, 83 N. Y., 480.
But he has a right to presume, in the absence of express notice to the contrary that the corporation does its duty and acts within and according to its charter Akin v. Blanchard, ante.
The officers can not bind the company except within the limits prescribed by tho charter and by-laws. Adriance v. Roome, 52 Barb., 399.
They are special and not general agents. Id.
There is no grant of power in the name by which the officer is designated; especially when the authority given is specified in the by-laws. Id.
Where the officers are not authorized by the act of incorporation or by-laws to do a certain act, the company can not be held liable therefor except upon proof:
1. That a general or particular authority for that purpose was conferred upon such officers or either of them, or
2. That the conduct of the company was such as to create a well founded belief that such general or particular authority had been delegated, or
3. That such acts, though unauthorized, were subsequently ratified by the board of trustees. Dabney v. Stevens, 40 How., 341.
It can not be presumed that an agent had authority to transact business in which the corporation itself was not, by its charter, authorized to engage. Alexander v. Cauldwell, 83 N. Y., 480.
The power of an incorporated company to borrow money, when it has not been directly conferred by its charter, extends, it seems, to all cases where it is essential to the transaction of its ordinary business. Beers v. Phoenix Glass Co., 14 Barb., 358.
In such case, it is incidental and in effect included in the grant of the principal power. Id. But this power should be limited to and for the appropriate business of the corporation. Id.
Neither the use of the corporate seal, nor a resolution of the trustees, is necessary to make the contract of a corporation valid. Hoag v. Lamont, 60 N. Y., 98. A corporation, organized under this act, may, upon a sale of a portion of its lands to another similar corporation, agree to advance moneys to the latter, to be used in erecting buildings on the premises conveyed. Greenpoint S. Co. v. Whitin, 69 N. Y., 328.
A director, trustee or an executive officer of a corporation is, as a general rule, without power to bind it or its shareholders by a contract authorized by or entered into with himself and for his individual benefit. Welch v. I. & T. N. Bk., 122 N. Y., 177. But if such contract is just as between the parties, and all the shareholders and directors and trustees are competent to assent, and, with full knowledge of the terms of the contract, do assent and direct that it be made, it is binding on the corporation and can not be avoided by its shareholders or by persons who subsequently become its creditors. Welch v. I. & T. N. Bk., 122 N. Y., 177.
A corporation that has permitted certain individuals to take possession of its property, seal and records, and to act as its trustees, and has in fact held them out to the world as its trustees, and as authorized to act for it, is as much as an individual would be, estopped from questioning the acts of its agents within the scope of their apparent authority. Lovett v. German R. Ch., 12 Barb., 67.
A manufacturing corporation may temporarily lease, it seems, its property to some person who will continue and carry on its business. Denike v. N. Y. & R. L. & C. Co., 80 N. Y., 599.
The general rules of law relating to contract and property rights apply to corporations as well as to individuals, and the principles of law of agency apply to both alike. Martin v. N. F. P. Mfg. Co., 122 N. Y., 165.
The stockholders may, where no rights of creditors intervene and no fraud is claimed, ratify the acts of the president and bind the corporation for the payment of a debt evidenced by notes made and discounted for his accommodation. Id.
When a transaction has been ratified by all the owners of the corporate property, formal action by the board of trustees is unnecessary. Id.
In such case, the company can not be heard to impeach it on the ground that it is without, or contrary to authority. Id.; Kent v. Quicksilver M. Co., 78, N. Y..
Additional powers conferred upon railroad companies are enumerated in section 4, chap. 565 of 1890; on Ferry corporations, in section 4, chap. 566 of 1890; on Stage Coach corporations, in section 22, chap. 566 of 1890; on Tramway corporations, in section 31, chap. 566 of 1890; on Pipe Line corporations, in section 49, chap. 566 of 1890; on Gas and Electric Light corporations, in section 61, chap. 566 of 1890; on Waterworks corporations, in section 82, chap. 566 of 1890.
All corporations, whether foreign or domestic, are debarred from alleging usury in the courts of our state, no matter where the contract was made, or by what lex loci it was to be governed. Rosa . Butterfield, 33 N. Y., 665. Nor can any corporation maintain an action to invalidate its contracts on the basis of usury. Id.; Butterworth ». O'Brien, 28 Barb., 187; Hungerford's Bk. v. Dodge, 30 id., 629; Southern L. I. & T. Co. v. Packer, 17 N. Y., 51.
Corporations are prohibited from interposing the defense of usury in any action. Butterworth v. O'Brien, 23 N. Y., 75. This deprives them of the right to recover back money paid by them in excess of legal interest. Id. The receiver stands in no better position. Id.; Rosa v. Butterfield, 33 N. Y., 665. Nor do the sureties of a corporation. Id.; Stewart v. Bramhall, 74 N. Y., 85; Union Nat. Bk. ». Wheeler, 60 id., 612; Smith v. Alvord, 63 Barb., 415.
It can not sue for the surrender of securities pledged by it as collateral to a usurious agreement. Isle of Wight Co. v. Smith, 51 Hun, 562.
Corporation can not sue for surrender of securities pledged as collateral to usurious debt. Isle of Wight Co. v. Smith, 51 Hun, 563.
An action for malicious prosecution will lie against a corporation. Morton v. Met. L. Ins. Co., 34 Hun, 366.
It is liable for slandering the business of another corporation. Buffalo, etc., Co. v. Standard O. Co., 42 Hun, 153; 106 N. Y., 669.
It may be liable even when a fraudulent or malicious intent in fact is necessary to be proved. Reed v. Home Sav. Bk., 130 Mass., 445. The fraud or malice of its authorized agents is imputable to the corporation. Id.
A corporation may become a party to a conspiracy and liable for the action of all the conspirators. Dodge v. Bradstreet Co., 59 How., 104; Morton v. Met. Life