Opinion
Argued February 14, 1983
Decided March 30, 1983
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN G. McCARTHY, J.
Richard T. Farrell for appellant.
Robert Abrams, Attorney-General ( Jonathan J. Silbermann, Peter H. Schiff and Robert R. Molic of counsel), respondent pro se and for ultimate charitable beneficiaries.
MEMORANDUM.
The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.
The American Society for the Prevention of Cruelty to Children, incorporated under the laws of the State of Delaware, made application under section 1304 of the Not-For-Profit Corporation Law for authorization to conduct activities in the State of New York. When the New York State Society for the Prevention of Cruelty to Children declined to give its approval as contemplated by subdivision (c) of section 1304 and subdivision (g) of section 404 of that statute, the American society instituted the present proceeding under subdivision (g) of section 404 to dispense with such approval. Supreme Court granted the relief sought but the Appellate Division reversed and dismissed the proceeding.
Although the application of the American society did not so state, in the Supreme Court and at the Appellate Division the litigation proceeded and the determinations were made on the assumption that the application of the American society sought authorization to conduct in New York all the activities a domestic Society for the Prevention of Cruelty to Children could conduct, including those pursuant to several special and extraordinary powers granted domestic societies under the laws of New York (e.g., Not-For-Profit Corporation Law, § 1403, subd [b]). In our court, apparently for the first time, the American society acknowledges that under subdivision (a) of section 1301 of the Not-For-Profit Corporation Law at most it can obtain authorization to conduct activities which may be conducted lawfully by a domestic corporation only to the extent that it is authorized to conduct such activities under the laws of the State of Delaware, the State of its incorporation.
Inasmuch as its application has never been considered on this limited basis, the proceeding should be remitted to Supreme Court for consideration and determination of the motion by the American society to dispense with approval of the New York society of its application for authorization to conduct activities in New York which may be conducted by domestic societies but only to the extent it may do so under the laws of Delaware. In view of the extensive submissions and record and the preliminary procedural steps accomplished, it is preferable to remit the present proceeding for such consideration and determination, rather than to affirm the determination of the Appellate Division (which was correct as the matter stood before it) without prejudice to the initiation of a new proceeding.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.
Order reversed, without costs, and matter remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the memorandum herein.