People v. Scher ( 1918 )

Jaycox, J.:

The information filed in this matter accuses the defendants of the crime of conducting business under an assumed name. It also and more directly accuses the defendants with having filed a certificate for the use of a family name, the family name so used not being the true or real name of any one of the persons conducting or intending to conduct said business. This certificate was false, without question. Robert Baumann, named therein, was not interested in the company mentioned in it. His wife was not interested in that company. The fact that she was interested in the Baumann Furniture Company, Inc., a corporation, does not alter the fact that she was not interested in the Robert Baumann Furniture Company, a copartnership or association of individuals for which said certificate was filed. The filing of the certificate does not create a corporation, but I think it is a fair assumption from it that the individuals named therein constituted a partnership. If the business was in fact conducted by the Baumann Furniture Company, Inc., in which Mrs. Baumann was a stockholder, the certificate was false nevertheless:

First. Because the Robert Baumann Furniture Company mentioned in the certificate did not conduct the business.

Second. Because Mrs. Baumann was not interested in the ■ Robert Baumann Furniture Company mentioned in the certificate.

Third. The statute does not relate to corporations, and her interest in a corporation of a similar name was not the interest the statute contemplates.

Therefore, no person of the name of Baumann was interested in the Robert Baumann Furniture Company mentioned in the certificate. The Robert Baumann Furniture Company, Inc., did not come into existence until some time after the transaction complained of. It is, therefore, idle to claim that it had any connection with or in any way justified the filing of such a certificate.

The record is very unsatisfactory and confusing, but I think it sufficiently appears from it that the defendants filed a certificate for the purpose of transacting business under the name of the Robert Baumann Furniture Company and there was no person by the name of Baumann interested in that company.

The judgment should be affirmed.

Jenks, P. J., and Blackmar, J., concurred; Kelly, J., read for reversal, with whom Mills, J., concurred.