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L. 1909, ch. 40

General Provisions

§ 21

or grove meetings, Sunday-school parliaments, temperance, missionary, educational, scientific, musical and other meetings, shall have power through its board of trustees, or other board of managers of the affairs of such corporation, for the purpose

of protecting and preserving such buildings, grounds and other property, and preventing injuries thereto, and preserving order, and preventing disturbances, and preserving the peace in such buildings and upon such grounds, by resolution of its board of trustees, or other board of managers, or otherwise, to appoint from time to time one or more special policemen, and the same to remove at pleasure, who when appointed shall be police officers, with the same powers within and about, or adjacent to, such grounds, as are vested in constables of the town where such grounds are located, whose duty, when appointed, it shall be to preserve order, and to prevent disturbances and breaches of the peace in and about the buildings and property and on and about the grounds of such corporation or approaches thereto or on grounds or in buildings pertaining thereto, and to protect and preserve the same from injury, and to arrest any and all persons making any loud or unusual noise, causing any disturbance or committing any breach of the peace, or committing any misdemeanor, or wilfully violating the established rules and regulations of said corporation, or committing any wilful trespass upon such grounds or property or approaches thereto or in or upon such buildings or any part thereof, and to convey such person or persons, so arrested, with a statement of the cause of such arrest, before a magistrate having jurisdiction of the offense, to be dealt with according to law.

This section was derived from L. 1895, ch. 493, § 1.

Liability of private person or corporation for acts of special officer appointed by public authority: see notes, 23 L. R. A. (N. S.) 289, 30 L. R. A. (N. S.) 481, 39 L. R. A. (N. S.) 122, 43 L. R. A. (N. S.) 1164, L. R. A. 1915C 1183.

§ 21. Trespass punished. Any wilful trespass in or upon any of the buildings or grounds provided or used for the purpose of said meetings, or upon the approaches thereto, and any wilful injury to any of the said buildings or to said grounds, or to any trees, fences, fixtures or other property thereon and pertaining thereto, and any wilful disturbance of the peace and quietness of said grounds by intentional breach of the rules and regulations

88 22–24

General Provisions

L. 1909, ch. 40

thereof, shall be misdemeanors punishable by fine and imprisonment, or either, and concurrently with the courts of record of this state, justices of the peace, police justices and courts of special sessions in the town where such grounds are situated, shall have the same jurisdiction of said offenses as they have of other cases of misdemeanors committed within their jurisdiction, and shall have jurisdiction over the persons of those brought before them in the form and manner prescribed in section twenty of this article, and said policemen are hereby empowered to carry and convey the persons so arrested before such justices of the peace, police justices and courts of special sessions, and to hold them until discharged according to law.

see

This section is derived from L. 1895, ch. 493, $ 2.

Character of meeting essential to offense of disturbing a meeting: 30 L. R. A. (N. S.) 829 notes; 45 L. R. A. (N. S.) 108 note.

Intent as element of offense of disturbing public meeting: see Ann. Cas. 1914B 741 note.

Place of worship *** meeting for divine worship,etc., within meaning of statute against disturbance thereof : see 19 Ann. Cas. 448 note.

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or

§ 22. Oath of policemen. Every policeman so appointed shall within fifteen days after such appointment and before entering upon the duties of his office, take and subscribe the oath of office prescribed in the thirteenth article of the constitution of the state of New York, which said oath shall be filed in the office of the county clerk of the county where such grounds are situated.

This section was derived from L. 1895, ch. 493, § 3.

§ 23. Shield. Each policeman shall, when on duty, wear a metallic shield with the word “policeman,” and the name of the corporation which appointed him inscribed thereon, and said shield shall always be worn in plain view.

This section was derived from L. 1895, ch. 493, § 4.

§ 24. Compensation. The compensation of such policemen shall be paid by the corporation by which they are respectively appointed in the form and manner agreed upon between them.

This section was derived from L. 1895, ch. 493, § 5.

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L. 1909, ch. 40

Corporations Not Elsewhere Authorized

§ 40

ARTICLE 3*

CORPORATIONS FOR PURPOSES NOT ELSEWHERE AUTHORIZED Section 40. Purposes for which corporations may be formed

under this article. 41. Certificates of incorporation. 42. Incorporation of associations of more than one thou

sand members. 43. Effect of incorporation. 44. Annual assembly or convention. 45. Board of directors. 46. Special powers. 47. Special police. 48. Annual meetings of corporations organized for

benevolent, charitable, or missionary purposes, when may be held without the state.

$ 40. Purposes for which corporations may be formed under this article. A membership corporation may be created under this article for any lawful purpose, except a purpose for which a corporation may be created under any other article of this chap ter, or any other general law than this chapter.

This section was derived from the Membership Corporations Law of 1895, § 30.

Section 40 of the Membership Corporations Law of 1895 is now covered by section 60.

I. Generally, 39
II. Right to incorporate, 40
III. Dissolution, 42

I. GENERALLY Exemption of property from taxation: see TAS LAW, $ 4. Trafficking in liquor by membership corporations: see LIQUOR Tax Law, $$ 2, 21.

Validity of statute making it offense to wear badge or emblem of society of which wearer is not member: see 21 Ann. Cas. 1037 note.

Failure to effect incorporation.— It seems that the failure properly to effect the incorporation of a proposed corporation does not make its members partners. Georgeson v. Caffrey, (1893) 71 Hun 472, 24 N. Y. S. 971.

Unlawful entry of club.- Equity will, at the instance of a club incorporated under this chapter, restrain police officers “ from entering without warrant the club rooms of the plaintiff to make arrests for alleged misdemeanors not committed or attempted to be committed in their presence,” but

This article was article 3 (88 30-36) of the Membership Corporations Law of 1896.

§ 40

Corporations Not Elsewhere Authorized

L. 1909, ch. 40

the injunction should be so limited as not to restrain them from making arrests in any lawful manner.” Fairmont Athletic Club v. Bingham, (1908) 61 Misc. 419, 113 N. Y. S. 905.

Application of Tax Law.- By the provisions of section 221 of the Tax Law relating to religious corporations, it was not “intended to include within that term any of the numerous benevolent, charitable, philanthropic and missionary organizations created either under special laws or under the general statutes repealed by the Membership Corporations Law.” Matter of Watson, (1902) 171 N. Y. 256, 63 N. E. 1109, reversing 70 App. Div. 623, 75 N. Y. S. 1134. See annotations to Tax Law, § 221.

Presumption as to foreign corporation.— "A foreign business corporation doing business within this state will be presumed to be a stock corporation if under the laws of this state it could not have been organized to do the business in which the corporation in question was engaged under the Membership Corporations Law.” Woodridge Heights Constr. Co. v. Gippert, (1915) 92 Misc. 204, 155 N. Y. S. 363. See also South Bay Co. v. Howey, (1907) 190 N. Y. 240, 83 N. E. 26; Chicago Crayon Co. v. Slattery, (1910) 68 Misc. 148, 123 N. Y. S. 987. In Portland Co. v. Hall, etc., Constr. Co., (1908) 123 App. Div. 495, 108 N. Y. S. 821, it was said that as a corpora tion organized under the laws of the State of New York could not have been organized to do the business in which the corporation in question was engaged, under the Membership Corporations Law (Laws of 1895, chap. 559), it must be presumed that no corporation not a stock corporation could be organized under the laws of any other state to do such business."

II. RIGHT TO INCORPORATE
Frauds in organization of corporations: see PENAL LAW, 88 660, 661.

Communistic society or corporation as contrary to public policy: see 11 Ann. Cas. 236 note.

Generally.—“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 them. selves within the terms of the act, and do in fact associate themselves for some of the ... objects contemplated.” People v. Nelson, (1871) 46 N. Y. 477.

Purposes authorized by Business Corporations Law.— The secretary of state is not required to file in his office a proposed certificate of incorporation under the Membership Corporations Law, which has for its objects those of a business nature. A corporation with such objects is provided for by the Business Corporations Law, and a membership corporation may not be created for the purposes provided by some other law. Op. Atty.-Gen. (1912) 528.

Manufacturing corporation.-A foreign corporation, the capital of which is invested in its plant and manufacturing business, and which is engaged in the business of manufacturing and dealing in fish fertilizer in this state, cannot be incorporated as a membership corporation, South Bay Co. v. Howey, (1907) 190 N. Y. 240, 83 N. E. 26, reversing 113 App. Div. 382, 98 N. Y. S. 909.

Insurance features. This section does not authorize the formation of a membership corporation for insurance purposes. Op. Atty.-Gen. (1907) 284. So, it was ruled that the Equitable Aid Society of Syracuse, incorporated under L. 1875, ch. 267, generally known as the Club Act, could not under the law of its incorporation transact an insurance business. Op. Atty.-Gen. (1895) 189. And membership corporations, organized pursuant to the Membership Corporations Law and engaged in the business of rendering aid to members limited to the amount specified in Insurance Law, $ 245, subd.

L. 1909, cha 40

Corporations Not Elsewhere Authorized

8 40

“C” are prohibited from advertising the furnishing of insurance benefits generally. They are not presumed to deal with the public generally, but such business is merely incidental to the business of the corporations. Such corporations may issue certificates of membership to members in which there appears a description of the benefits promised for the amounts paid. Op. Atty.-Gen. (1914) 178. It has been ruled that an unincorporated club which, prior to January 2, 1913, had a disability and death insurance feature connected with membership therein, cannot organize as a membership corporation and retain the insurance features, although claiming its activities to be purely for benevolent purposes. Op. Atty.-Gen. (1913) 680. In the case of In re Incorporation of In re Howard Aid Society, (1916) 160 N. Y. S. 789, the propriety of incorporating under the Membership Corporations Law for mutual aid and help among members was questioned. The case was decided, however, on the ground that the use of the word “aid ” in the name constituted a violation of section 6 of the General Corporation Law. Provisions of the constitution and by-laws of a benevolent association for the payment of a member's funeral expenses do not constitute insurance. Seidenspinner v. Metropolitan Life Ins. Co., (1902) 70' App. Div. 476, 74 N. Y. S. 1108, reversed on other grounds (1903) 175 N. Y. 95.

Educational and charitable corporations. It was ruled in Op. Atty.-Gen. (1911) 427, that the German-American School Association, a proposed corporation, having for its objects the preservation of the German language in the city of New York by procuring and promoting free tuition in the German language for children, particularly those of German extraction, was not entitled to be incorporated under the Membership Corporations Law, but was an educational institution such as was required to incorporate under section 59 of the Education Law. In Op. Atty.-Gen. (1915) 300, the attorneygeneral, speaking of the incorporation of the Christian Herald Fukien Industrial Homes,” said: “In my opinion, a certificate of incorporation under the Membership Corporations Law, consented to in writing endorsed thereon by the board of regents, together with the written approval of a justice of the Supreme Court, and the state board of charities endorsed thereupon or annexed thereto before the filing of the same, in compliance with sections 41 and 130 of the Membership Corporations Law would be a valid and legal incorporation of the proposed home. These last two certificates became necessary on account of the charitable purposes stated in the proposed certificate, and the board of regents have no authority to grant a certificate for such a purpose. A certificate so executed would meet all the requirements of section 482 of the Penal Law.”

See, generally, EDUCATION LAW, $ 59, note.

Universities.-A university cannot be incorporated under this section. Matter of Lampson, (1896) 33 App. Div. 49, 53 N. Y. S. 531, affirmed (1900) 161 N. Y. 511, 56 N. E. 9. And see EDUCATION Law, § 59 and note.

Home for convalescents. -- The certificate of incorporation of a home for convalescents may be filed under this section, and it is not necessary that it be filed under section 130, where it is evident that the incorporators “have in mind the establishment of a place at which persons could be received who have been discharged from hospitals or other places, but are not sufficiently recovered to engage in their occupations and have not fully recovered their strength.” Op. Atty.-Gen. (1905) 274.

Religious corporations.- Neither the provisions of L. 1848, ch. 319, “entitled 'An Act for the incorporation of benevolent, charitable, scientific and missionary societies, which, with the exception of section 6 thereof, was thereafter repealed by the Membership Corporations Law, being chapter 559 of the Laws of 1895,” nor the provisions of this later law authorized “the organization thereunder of a strictly religious corporation or a corporation exclusively for Bible or tract purposes as contra-distinguished from missionary purposes.” Matter of White, (1907) 118 App. Div. 869, 103 N. Y. S.

688.

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