"An act to amend the Public Health Law," in relation to the establishment of hospitals or camps for the treatment of patients for pulmonary tubercu losis, abrogate in any way the provisions of section 130 of article 7 of the Membership Corporations Law, which provides for the incorporation of hospitals, I beg to say:

Chapter 171 of the Laws of 1909, is an amendment to section 319 of the Public Health Law, and places in the State Commissioner of Health and the local health officer the authority to approve or disapprove the establishment of a proposed hospital or camp for the treatment of pulmonary tuberculosis.

The effect of this act seems to be solely that it took from the board of supervisors of the county and the town board of the town within which it it proposed to establish a hospital or camp the power to disapprove of such location, and lodged the authority to approve or disapprove such proposed location in other officials. In no manner does chapter 171 of the Laws of 1909 change or refer to the method of incorporating such hospitals. The process by which the corporate entity itself is created in not mentioned or affected. It refers solely to the establishment, the camp, the place of treatment and regulates the location of the same.

In other words, the change in question affects the act of the corporation and not the inception or formation thereof, and I am unable to see how it can possibly abrogate or modify any of the provisions of section 130 of article 7 of the Membership Corporations Law, which prescribes the method of incorporation.

Yours very truly,

EDWARD R. O'MALLEY,
Attorney-General.

It is not the intent of the statute that hospital corporations shall be created under the Business Corporations Law, and the State Board of Charities is not authorized to approve certificates of incorporation under such law.

STATE OF NEW YORK,

ATTORNEY-GENERAL'S OFFICE,

ALBANY, March 4, 1911.

Hon. ROBERT W. HEBBERD, Secretary, State Board of Charities, Albany, N. Y.: DEAR SIR.- This acknowledges receipt of your favor of the 23d ultimo, enclosing proposed certificate of incorporation of The Rebeau Private Hospital, which has been submitted to your Board for approval and is now referred to me for examination as to legal form.

You ask me whether this proposed certificate of incorporation requires the approval of your Board in view of the fact that it is to be organized under the Business Corporations Law.

I have examined this proposed charter and am unable to approve it for the following reasons:

The incorporators seek to organize a corporation under the General Business Corporations Law for the purpose of conducting a hospital. I am satisfied that this cannot be done. The Business Corporations Law permits

three or more persons to become a stock corporation for any lawful business purpose or purposes by making, signing, acknowledging and filing a certificate stating the matters set forth in article 2, section 2 of that law. While the maintenance of a hospital may be a lawful business, still provision has been made elsewhere for the creation of such corporation. It is found in the Membership Corporations Law, section 130, and is as follows:

"Five or more persons may become a corporation for the purpose of erecting, establishing or maintaining a hospital, infirmary, dispensary, or home for invalids, aged or indigent persons, by making, acknowledging, and filing a certificate, stating the particular object for which the corporation is to be formed; the name of the proposed corporation; the town, village or city in which its principal office is to be located; the number of directors, not less than three or more than forty-eight; the names and places of residence of the persons to be its directors until its first annual meeting, and the time for holding its annual meetings.

"Such certificate shall not be filed without the written approval indorsed thereupon, or annexed thereto, of the state board of charities and of a justice of the supreme court of the district in which the principal office or place of business of such corporation shall be located."

Hospital corporations are, therefore, when incorporated under this statute, required to have the State Board of Charities and a justice of the Supreme Court of the district in which the principal office or place of business shall be located, approve their charters before they are filed.

In section 41 of the Membership Corporations Law we find this language: "If such certificate specify among such purposes the care of orphans, paupers or destitute children, the establishment or maintenance of a maternity hospital or lying-in asylum where women may be received, cared for or treated during pregnancy or during or after delivery

the written approval of the state board of charities shall also be indorsed thereupon before the filing thereof."

The Business Corporations Law does not require these indorsements. If this corporation is permitted to incorporate under the Business Corporations Law the purpose of the statute above quoted will be frustrated. These incorporators should incorporate under the Membership Corporations Law. In answer to your inquiry, I might add to what has been already said that I find no provision in the Business Corporations Law requiring the approval by your Board of certificates of incorporation thereunder. Such a provision was undoubtedly omitted for the reason that it was not contemplated that such a corporation as one for hospital purposes should be created under its provisions.

Yours respectfully,

THOMAS CARMODY,
Attorney-General.

§ 4. Qualifications of incorporators. A certificate of incorporation must be executed by natural persons, who must be of full age, and at least two-thirds of them must be citizens of the United States and one of them a resident of this state. This section shall not apply to a corporation formed by the reincorporation or consolidation of existing corporations, or to the reorganization of a corporation upon the sale of the property and franchises of a previously existing corporation or otherwise.

5. Filing and recording certificates of incorporation.1. Every certificate of incorporation including the corporate name or title and every amended or supplemental certificate and every certificate which alters the provisions of any certificate of incorporation or any amended or supplemental certificate hereafter executed, shall be in the English language, and except as otherwise provided by law, shall be filed in the office of the secretary of state, and shall be by him duly recorded and indexed in books specially provided therefor, and a certified copy of such certificate or amended or supplemental certificate with a certificate of the secretary of state of such filing and record, or a duplicate original of such certificate or amended or supplemental certificate shall be filed and similarly recorded and indexed in the office of the clerk of the county in which the office of the corporation is to be located, or, if it be a non-stock corporation, and such county be not determined upon at the time of executing the certificate of incorporation, in such county clerk's office as the judge approving the certificate shall direct. All taxes required by law to be paid before or upon incorporation and the fees for filing and recording such certificate must be paid before filing. No corporation shall exercise any corporate powers or privileges until such taxes and fees have been paid.

2. Whenever under any law now or heretofore in force the certificate of incorporation of any corporation other than a stock corporation was or is required to be filed in more than one public

office, a certified copy of such certificate so filed in any one of such public offices may be filed in such other office with the like effect as if the original had been duly filed therein, provided, however, that no rights accrued prior to the filing of such copy shall be impaired or affected thereby, provided also, that such filing of a copy shall not cause a duplication or similarity of corporate names in violation of the next succeeding section.

§ 6. Corporate Names. 1. No certificate of incorporation of a proposed corporation having the same name as a corporation authorized to do business under the laws of this state, 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, or of authorizing it to do business in this state; nor shall any corporation except a religious, charitable or benevolent corporation be authorized to do business in this state unless its name has such word or words, abbreviation, affix or prefix, therein or thereto, as will clearly indicate that it is a corporation as distinguished from a natural person, firm or copartnership; or unless such corporation uses with its corporate name, in this state, such an affix or prefix. A corporation formed by the reincorporation, reorganization or consolidation of other corporations or upon the sale of the property or franchises of a corporation, may have the same name as the corporation or one of the corporations to whose franchises it has succeeded. No corporation shall be hereafter organized under the laws of this state with the word "trust," "bank," "banking," "insurance," " assurance," " "indemnity," guarantee," "guaranty," "guaranty," "title," "savings," "investment," "loan" or "benefit" as part of its name, except a corporation formed under the banking law or the insurance law. (As amended by chapter 638 of the Laws of 1911.)

2. No corporation, society or association, whether now existing or hereafter organized under or by virtue of the laws of this state, shall ever employ the words "Lucretia Mott" to designate, describe or name any hospital, infirmary or dispensary, or any part thereof, or any similar institution.

§ 7. Amended and supplemental certificates. If in the original or amended certificate of incorporation of any corporation, or

if in a supplemental certificate of any corporation any informality exist, or if any such certificate contain any matter not authorized by law to be stated therein, or if the proof or acknowledgment thereof shall be defective, the corporators or directors of the corporation may make and file an amended certificate correcting such informality or defect or striking out such unauthorized matter; and the certificate amended shall be deemed to be amended accordingly as of the date such amended certificate was filed, and upon the filing of such an amended certificate of incorporation, the corporation shall then for all purposes be deemed to be a corporation from the time of filing the original certificate.

The supreme court may upon due cause shown, and proof made, and upon notice to the attorney-general, and to such other persons as the court may direct, and upon such terms and conditions as it may impose, amend any certificate of incorporation which fails to express the true object and purpose of the corporation, so as to truly set forth such object and purpose.

When an amended or supplemental certificate is filed, an entry shall be made upon the margin of the index and record of the original certificate of the date and place of record of every such amended certificate.

The amendment of a certificate under this section shall be without prejudice to any pending action or proceeding, or to any rights previously accrued.

§ 8. Lost or destroyed certificates. If either of the certificates of incorporation shall be lost or destroyed after filing, a certified copy of the other certificate may be filed in the place of the one so lost or destroyed and as of the date of its original filing, and such certified copy shall have the same force and effect as the original certificate had when filed.