Opinion
April 1, 1960
Edwin M. Bourke and Alfred Avins for petitioner.
Louis J. Lefkowitz, Attorney-General ( Philip Kahaner of counsel), for respondent.
This purports to be a proceeding under article 78 of the Civil Practice Act in which petitioner, complaining of respondent's refusal to accept for filing and to file its certificate of incorporation as a membership corporation, seeks an order of mandamus. The proposed certificate is not submitted, but it will be assumed that it is in every respect proper in form save for the absence of approval by a Justice of the Supreme Court. Such approval has been refused ( Matter of Association for the Preservation of Freedom of Choice, 17 Misc.2d 1012; 18 Misc.2d 534; see, also, 10 A.D.2d 604, 711, 873).
For the purpose of this motion, the petition is deemed complete, and adequate to raise the issue as joined by respondent's cross motion to dismiss for insufficiency. The sole contention is that respondent must accept the certificate for filing and should be directed to do so because section 10 of the Membership Corporations Law and subdivision 2 of section 211 of the General Corporation Law are unconstitutional as applied to the petitioner. This court does not agree with petitioner's contentions and holds that section 10 of the Membership Corporations Law and subdivision 2 of section 211 of the General Corporation Law are not unconstitutional. Accordingly, the relief sought in this proceeding for an order to direct the respondent as Secretary of State to accept and file a certificate of incorporation of Association for the Preservation of Freedom of Choice, Inc., or a certificate to do business in this State as a membership corporation without the approval of a Justice of the Supreme Court, is denied; the cross motion is granted; and the petition is dismissed.