2 Hilt. 566 | New York Court of Common Pleas | 1859
This is an application for an order authorizing the petitioner to change his name to John Pike.
He sets forth in his petition that Snook is a name of German origin, corresponding with the English word Pike. That some years ago he intended to apply to the legislature for liberty to change his name, and consulted a lawyer, who advised him that he had the right to change his name himself, and that such application was not necessary. That he accordingly changed his name to John Pike, and became a member of a firm, in the city of Syracuse, under the name of John Pike & Co., and under that name became and is known to a large number of hits business acquaintances, and enjoys under it a business goodwill;
Under the act of 1847 a judge of this court may authorize any person of full age, residing in this state, to assume another name, if the judge is satisfied that the applicant will derive any pecuniary benefit from assuming another name. By this is to be understood that the judge is to be judicially satisfied, upon proper proof (Smith v. Luce, 13 Wend. 237,) that such will be the effect if the name is changed. To put a case in point, if an estate is left to a man by will, upon condition that he take the name of the testator, then it is apparent that he will derive a pecuniary benefit by being allowed to assume that name. In this case the petitioner merely shows that he believes that it will be for his pecuniary interest that his name should be changed to John Pike; but that, in my judgment, is not sufficient to give me authority, under this act, to order his name to be changed. The mere possibility or probability that such may be the effect is not enough. The evidence before the judge must be such that he can say judicially that the applicant will derive a pecuniary benefit by assuming another name, or a case is not presented that will entitle the officer to exercise the special jurisdiction conferred by the act.
The question has been asked, upon this application, whether he has not the right to translate his name into the English language, and call himself by the word in English, which is equivalent to or of the same meaning as Snook? It does not fall within the sphere of my judicial duty to pass upon that question ; but, as this application has been made in good faith, and is very earnestly pressed, I have no objection to state my views. The word Snook is not, as the applicant supposes, of German origin, nor is “ pike ” expressed in German by such a word. The word is Dutch or Flemish, from snoeh, signifying pike, a species ;f fish. Wernick’s Dictionary. The meaning of the word con
But though the custom is wide spread and universal, for all males to bear the name of their parents, there is nothing in the law prohibiting a man from taking another name if he chooses. There is no penalty or punishment for so doing, nor any consequence growing out of it, except so far as it may lead to or cause a confounding of his identity. In some countries it is otherwise. In France, a law was passed in the second year of the first revolution (L. 6 Fructidor, Au. II.,) and another (19 Nivose, Au. VI.,) which is still in force (Codes Francois par Bourguignon et Boyer— Collard, § 34 and note; Dietionaire de Legislation Universal par Chábal—Charneane, vol. 2, p. 266,) forbidding any citizen to bear any first name (prenom) or surname, than that which is expressed in the registry of his birth, or to add any surname to his proper name; but no enactment of the kind has ever been passed in England or in this state, but, on the contrary, there have been many instances in which individuals have changed their names and held offices of public trust, and become distinguished by the name they adopted. The poet Mallet may be cited as an illustration. His father was of the clan of the Macgregors; and when that clan was suppressed, and its name abolished by law in consequence of the violent acts of Rob Roy, he took the name of Malloch, by which name the son was known until he came to London in his twenty-sixth year, when, disliking his Scotch patronymic, he adopted the French name ot Mallet, and by this name held an office under government, became distinguished in literature, and transmitted the name to his descendants. That such instances rarely occur, may be readily accounted for in the fact of the absence, usually, of any object to induce a man to change his name. In the circumstance that there is generally a just and honorable pride in bearing the name of one’s ancestors, and in the further fact that it is scarcely in the power of a man to change his name, unless he goes to a
It is this difficulty, I apprehend, mainly, that led to the practice of applying for the king’s license, or the passage of a statute, in cases where the taking of a new name had become necessary in consequence of the devise of an estate upon that condition, as all persons will conform to what is decreed or enjoined by the sovereign authority of the state. Lord Mansfield seems to have thought, in Gulliver v. Ashby, (4 Bur. 1940), that the kingis license, or an act of parliament, was essential to entitle a man to assume another name; but in later cases the right of an individual to take another name, without the king’s license or an act of parliament, has been distinctly recognized; and the validity of acts done in the adopted name have been sustained even where they imposed a charge upon the public. In The King v. The Inhabitants of Billinghurst, (3 Maule & Sel. 250), the question was, whether a pauper, whose baptismal and surname was Abraham Langley, and who, by that name, had a legal settlement in Billinghurst, could, with his wife and family, be charged upon that parish. He was married in another parish by the name of George Smith, and had been known in that parish for three years before his marriage by that name. The wife and children had no settlement in Billinghurst, unless they had acquired one by the marriage, and the point involved was the validity of the pauper’s marriage by the name of George Smith; the marriage act of 26 Geo. II, c. 33, rendering it essential to the validity of a marriage that there should be a publication beforehand of the “true Christian and surnames” of the parties. It was insisted that this had not been done—that the marriage was, therefore, void, and that the wife and children were not chargeable upon the parish of Billinghurst; but the court held that the publication of the banns by the name of George Smith—that being the name which the pauper had gained by reputation, and oy which he was known at the time in the parish where he was nnrried—was a publication of the true name within the meaning
Doe v. Yates (5 Barn. & Ald. 544,) is a case still more distinctly in point. An estate was devised upon condition that the devisee should take the surname of the testator. The will provided that, within three years after the devisee arrived at the age of twenty-one, he should procure his name to be altered to the testator’s name of Luscombe, by act of parliament or in some other effectual way. The devisee, before he was of age and before he entered upon or was let into the possession of the estate, took the name of Luscombe, which name he continued thereafter to bear. At twenty-one he took possession of the estate, but suffered the three years to go by, without applying for the king’s license or an act, of parliament, to entitle him to use the name of Luscombe, and he continued to hold and enjoy the estate for eight years thereafter, when he conveyed it to the defendants. It was insisted that he had forfeited the estate by having failed to comply with the testator’s directions within the three years after he reached twenty-one, in not obtaining or applying for the king’s license, or
I have gone into the examination of this question so minutely because it has never, so far as I am axvare of, been previously investigated; and into the origin of the usage that now prevails in respect to names, because the works commonly referred to on matters of general knowledge are exceedingly barren of information upon the subject of personal nomenclature. The result of this examination shows, I think, there is nothing in the law to prevent the petitioner from continuing to call himself John
Application refused.
By an act of the legislature passed March 17, 18G0, (see Laws, p. 125), tha power of the court was very materially enlarged in respect to permitting a persoij to assume another name; by amending § 3 of the act of 1847 (see Laws 1847 eh. 464) so as to read as follows:
If the court to whom such application shall be made, shall be satisfied by suet petition, so verified, or by affidavits presented, that there is no reasonable objection that such person should assume another name, such court shall make an order au thorizing such applicant to assume such other name from and after some time, not less than thirty days, to be specified in such order. It shall bo the duty of thn county clerks of the several counties of this state, except the city and county o! Hew York, and of the clerk of the Court of Common Pleas for the city and county of Hew York, annually, in the month of December, to make a return to the office of the secretary of state, of all changes of names of persons made under and by virtue of this act; and the names of such persons before and after such changes, as the same shall appear in such returns, shall be published in tabular form with the session laws of each year.”