
    In the Matter of Frank Boufford Co., Inc., Respondent, v. John P. Lomenzo, as Secretary of State of the State of New York, Appellant.
   Appeal from a judgment of Supreme Court, entered in Albany County on August 17, 1971, in a proceeding under CPLR article 78 by which Special Term directed appellant to file respondent’s certificate amending its corporate name. Respondent sought to amend its corporate name to Boufford Company, Inc. The appellant rejected the application because the name proposed was so similar to the existing name of another corporation, Bouffard Contracting Corporation, “as to tend to confuse or deceive”. (Business Corporations Law, § 301.) The only differences between the proposed name and the name on file are the spelling (even the respondent in its show cause order spelled them the same) and the addition of the word “contracting”. The appellant was vested with discretion in the matter. (Gross v. State of New York, 33 A D 2d 868; 19 NYCRR 147.1.) Under the circumstances, his acts were not arbitrary or capricious. (See Matter of Motor Club of Amer. v. Curran, 274 App. Div. 1083.) Respondent argues that the name similarity was not calculated to deceive ”. That consideration is not determinative. The former statute (General Corporations Law, § 9) referred to a “name so similar as to be calculated to deceive ”, That language was changed in section 301 of the Business Corporations Law to “tend to confuse or deceive”. The purpose of the amendment was to clarify the intent of the statute to avoid a conflict in names even though deception was not necessarily involved. (See 1961 Report of the Joint Legislative Committee to Study Revision of Corporation Laws, N. Y. Legis. Doc., 1961, No. 12.) The procedural irregularity in proceeding by order to show cause and verified affidavit, rather than the petition and notice provided by CPLR article 78, was properly disregarded by Special Term. (CPLR 103, subd. [e].) Judgment reversed, on the law and the facts, and petition dismissed, without costs. Herlihy, P. J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.  