
    The People ex rel. The United States Grand Lodge of the Order of Brith Abraham, Relator, v. Louis F. Payn, Respondent.
    (Supreme Court, Albany Special Term,
    July, 1899.)
    Mutual benefit fraternity — Eight to reincorporate under its own name, although similar to that of another fraternity — Mandamus against Superintendent of Insurance Department.
    An incorporated mutual benefit fraternity has an absolute right to reincorporate under the Insurance Law (Laws of 1892, chap. 690), and by its existing name, although that be very similar to the name of another previously incorporated benefit fraternity.
    The Superintendent of the State Insurance Department is given by the statute no discretion in the matter, and may be compelled by mandamus to comply with section 231 of the statute and file the declaration for a reincorporation thereby required, and refer the same to the attorney-general for his certificate of conformity and approval.
    Application for a peremptory writ of mandamus.
    H. M. Goldfogle (T. E. Hancock, of counsel), for relator.
    John C. Coyne, opposed.
   Chester, J.

This is an application for a peremptory writ of mandamus to compel the respondent as superintendent of insurance to file the declaration and statement presented to him by the petitioner, and refer the same to the attorney-general for his certificate under article VII, section 231 of the Insurance Laws. Chap. 690, Laws of 1892, § 231.

The purpose of the petitioner is to procure a reincorporation under the law. It appears that the petitioner was organized in the year 1859 and continued as an unincorporated association until 1888, when it was duly incorporated as a mutual benefit fraternity under the name of the United States Grand Lodge of the Order of Brith Abraham. In the year 1887 some of the members of this body withdrew from the order and instituted what is known as the Independent Order of Brith Abraham, which was incorporated under that name February 7, 1887. The latter body was reincorporated under the provisions of section 231 of the Insurance Law on August 2, 1894. The petitioner desiring to also reincorporate itself prepared its declaration in all respects as required by section 231 and requested the respondent, pursuant to that section, to file the same- and refer the same to the attorney-general for his certificate of conformity and approval. The respondent has refused this request on the ground that the Independent Order Brith Abraham had been recognized by the insurance department, and that the similarity of names would be misleading and confusing to the public.

It is urged here in support of the determination of the superintendent that, under the statute, he has a discretion to perform, the exercise of which cannot be controlled by mandamus. As I read the statute the duty of the superintendent in this respect is a ministerial one. The statute provides with reference to reincorporation of existing fraternities (art. VII, § 231) that any mutual benefit fraternity incorporated under the laws of the state may reincorpórate under the provisions of the chapter by filing with the superintendent a declaration and sworn statement as required by the section.

Xo question is made here as to the sufficiency of the statement and declaration. The statute in the same section then proceeds “ The superintendent shall file said declaration and statement, and refer the same to the attorney-general for his certificate of conformity and approval, and upon the return thereof the superintendent shall record the same with the certificate of the attorney-general in his office, and deliver to such corporation, association or society a certified copy of the papers so recorded, together with his license to carry on the work of a fraternal beneficiary society, order or association as proposed in such declaration. Upon filing the same in the office of the clerk of the county wherein the principal office for the transaction of its business is located, it shall thereupon be duly incorporated under the provisions of this article.”

There is nothing in this section conferring any discretion upon the superintendent with reference to the filing of such declaration and statement, and the reference of the same to the attorney-general, but the language of the section is peremptory that the superintendent shall file such declaration and statement and refer the same to the attorney-general.

While section 6 of the General Corporation Law (Laws of 1892, Chap. 687) provides that "Xo certificate of _ incorporation of a proposed corporation having the same name as an existing domestic 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,” the same section provides that “ a corporation formed by the reincorporation, reorganization or consolidation of other corporations, or upon a sale of the property or franchise of a corporation, may. have the same name as the corporation, or one of the corporations to whose franchises it has succeeded.”- So here is the express legislative authority giving this existing corporation the right to the use of its original name upon reincorporation. This authority together with the right given by section 231 of the Insurance Law, to any incorporated mutual benefit fraternity to reincorpórate under its provisions and the legislative mandate requiring the superintendent to file the declaration and statement required by law, and to refer the same to the attorney-general, indicates clearly to my mind that the respondent has misconstrued the law in denying to the petitioner the right to have its declaration filed and referred to the attorney-general.

The peremptory mandamus prayed for is granted, but as there is nothing to indicate that the refusal of the superintendent was not made in good faith, it should be without costs.

Application granted, without costs.  