People ex rel. Baker v. Department of Health

116 N.Y.S. 66 | N.Y. App. Div. | 1909

Laughlin, J.:

The petitioners are husband and wife and at the times in question they resided in the borough of Manhattan, Hew York. On the 15th day of July, 1906, a male child was born to them. On that day the mother stated to the attending physician that she intended to name the baby Edward Young Baker, Jr., and on the twenty-third day of the same month she reiterated that intention to him, the statement on each occasion having been made in answer to a question put by him.

On the latter date the physician made a record of the birth of the child on his registry and forwarded a certificate thereof to the department of health and in it-stated the name of the child as thus given to him by the mother. The father was not present on either occasion and he was not consulted by the attending physician with respect to the name of the child. It does not even appear that the mother knew’the purpose of the-inquiry or that the physician intended to state the name of the child in the certificate of birth. It does appear that the mother had not sufficiently recovered from her illness to discuss the name of her child with her husband until some three weeks after his birth when they decided to name him William Henry Baker-, since which time he has been known by that name and was baptized and christened by that name on the 22d day of March, 1908, at St. Andrew’s Church, Harlem. On the 30th day of August, 1908, the relators had another son born to them whom they named Edward Young Baker, Jr., and he was so named in the certificate of birth filed with the department of health. The relators subsequently petitioned the commissioner of health to correct the record with respect to the name of the first child mentioned to conform to his baptismal name, but he denied their application, and then they instituted this proceeding to obtain that relief. The only point made by the learned counsel for the appellant is that this is an attempt to change the name of the child and that the provisions of the Code of Civil Procedure (§§ 2410-2415) afford the exclusive remedy.

We are of opinion that this is not the case of a change of name within the contemplation of the provisions-of the Code of Civil Procedure relating to changes of names of individuals. By section 1240 of the Greater Hew York charter (Laws of' 1901, chap. 466, as amd. by Laws of 1905, chap. 532) the department of health is required to keep a record of births which “ shall state the place and date of birth, the name, sex and color of the child, the names, residence, birthplace and age of the parents, occupation of father, and maiden name of mother, as fully as they have been received, and the time when the record was made,” and section 1241 of the same charter provides that “Ho change or alteration shall at any time be made in any of the records of the said bureau of records in said city without proof satisfactory to and upon the approval of the said commissioner of health.” It is the duty of physicians and professional mid wives “ to keep a registry of the several births in which they have assisted professionally, which shall contain, as near as the same can be ascertained, the time of such birth, name, sex and color of the child, the names, residence, birthplace and age of the parents, occupation of the father and maiden name of the mother, and file a report of the same within ten days with the said department of health.” (Greater H. Y. Charter, § 1237, as amd. by Laws of 1905, chap. 532.) The only real objection according to the record made by the department of health is one of convenience, it being claimed that applications of this nature have become very numerous, and that if they are granted freely it will result in serious mutilation of the records. It is manifest that mistakes and inaccuracies will inevitably occur with respect to the names of children and of their parents and of the other facts required to be stated in a certificate of birth and entered of record in the department of health, and it may bo a matter of great importance to the individual concerned to have these records corrected to avoid embarrassment with respect to paternity, the inheritance of property and marriages. The name of a child should be selected by and be acceptable to both parents. The parents never decided upon the name contained in the certificate of birth for this child. There is nothing to indicate that the parents have not acted in good faith. They did not first give the child one name and then change it. \ They only once named their son and that occurred as soon as the mother was able to confer with her husband on the question of selecting a name. Both parents agreed upon the name by which the child was subsequently baptized, as is shown by the certificate of baptism presented and the child was never known by the name recorded in the records of the department of health. Authority is conferred by the provisions of section 1211 of the charter herein quoted upon the commissioner of health to correct the records, and where a mistake has thus been made it should be corrected by him on due application. The material facts were elk"v presented to him and no question is raised in this regard. We have no doubt that in this particular case the commissioner would have corrected the records, were it not for the fact that he thought that it would be establishing a precedent, and on account of the number of applications and the extent to which the records may be altered, if these applications be granted, he evidently desired a ruling by the court upon his authority and duty in the premises.

We are of opinion that the commissioner was authorized to make the correction and that it was his duty to make it.

It, therefore, follows that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, Clarke, Houghton and Scott, J«T., concurred.

Order affirmed, with ten dollars costs and disbursements.