After twelve years of marriage, the defendant Charles Ludwig Baumann *Page 392 and the plaintiff Berenice, his wife, both domiciled in New York, executed a separation agreement. He made provision for the support of his wife and children and she released her dower rights. Three years later he departed for Mexico, spent a month in that country and returned with a document issued by an administrative official of the State of Yucatan and purporting to grant him a divorce. No action had been instituted by him in any court nor had any process been served upon or notice given to plaintiff. Not until the fact had been accomplished did she have any knowledge of her husband's journey or its purpose. Two years elapsed and then the husband, accompanied by the defendant Ray Starr Einstein, also domiciled in New York, drove to Connecticut and went through the form of a marriage before a justice of the peace. Mr. Baumann and Mrs. Einstein have since resided together in New York as husband and wife, he informing his acquaintances that he had obtained a divorce from his first wife and Mrs. Einstein assuming the title and claiming the position of Mrs. Charles Ludwig Baumann. The pretended Mexican divorce is a nullity (Atherton v. Atherton, 181 U.S. 155; Haddock v.Haddock, 201 U.S. 562; Olmsted v. Olmsted, 216 U.S. 386) and, consequently, so is the pretended Connecticut marriage. No one disputes either proposition. This appeal results merely from a challenge concerning the form of this remedy and the power of a court of equity to mould this decree. Among other things, the judgment enjoins both defendants from continuing to represent that Baumann has been divorced from plaintiff and it also enjoins Mrs. Einstein from assuming or using the name "Baumann" in any form or combination. The majority of this court holds that in respect to granting an injunction the Supreme Court exceeded its jurisdiction.
Something unsound appears to lie in a rule which would deny to a court of equity the power to enjoin the masquerade of another's name and title and the infringement *Page 393 of the mingled personal and property rights which include that name and constitute the matrimonial status. This part of the judgment which grants an injunction can be reversed only because this court is prepared to concede a complete absence of power to protect that status in a manner substantially similar to the method adopted by the courts below. A mere declaration of rights will prove inadequate; I think that equity has jurisdiction to enforce some protective measure. An individual possesses an exclusive property right in a name. (Edison v. Edison Polyform Mfg. Co., 73 N.J. Eq. 136, 141, 143; State ex rel. LaFollette v. Hinkle, 131 Wn. 86, 93.) By the custom of centuries a married woman takes her husband's Christian and surname. (Chapman v. Phoenix Nat. Bank, 85 N.Y. 437, 450;Carrall v. State, 53 Neb. 431, 436.) The common-law right to assume a name cannot extend beyond the boundary of good faith (Smith v. U.S. Casualty Co., 197 N.Y. 420; U.S. v. McKay,2 Fed. Rep. [2d] 257, 259), but the issue here lies even deeper. Plaintiff's right to the use of her name arises from her contract with Baumann which created their marriage relation and I think her right to her own name is exclusive. Her matrimonial status results from a merger of personal and property interests. Her property rights grow out of her personal relation. Marriage is deemed a valuable consideration and has always been subject to the special protection of the law. So we are not put to a choice on the one hand between the rule or the supposed rule that equity jurisdiction is limited to the protection of property rights (Matter of Sawyer, 124 U.S. 200, 210; Matter of Debs,158 U.S. 564; Roberson v. Rochester Folding Box Co., 171 N.Y. 538,553) and on the other hand the theory that the vindication of purely personal rights also lies within its scope. (Vanderbilt v. Mitchell, 72 N.J. Eq. 910; Pound, 29 Harvard L.R. 640; Long, 33 Yale Law Journal, 115; Chafee, 34 Harvard L.R. 407.) We deal with a union of such rights. The real Mrs. Baumann retains all the personal and *Page 394 property interests in her marriage except those of consortium and dower, which she released by the separation agreement, and her former right of support, for which she substituted a different provision by the same contract. Mrs. Einstein's usurpation of this matrimonial title and status is not wholly dissimilar from the wrongful assumption of the title of a civil or military office. It is true that Ray Starr Einstein does not pretend to be Berenice Baumann, but she does purloin the title of Charles Ludwig Baumann's wife, a title to which she has no more right than to the one belonging to the Governor of Connecticut or to the commanding general of the Mexican army. Plaintiff has the legal right and defendants inflict the legal wrong. The name indicates the status of the wearer and Mrs. Einstein has no right to wear it. That right belongs to plaintiff. Pecuniary injury to her by confusion of identity is not improbable. These defendants are engaged in the perpetration of a fraud (Hawke v. Corri, 2 Hag. Con. 280) and threaten to persist in it. A distinguished court has recognized the jurisdiction of equity to interfere where there has been an unwarranted use of a man's name, the probable effect of which is to expose him to risk of future liability. It has approved the application of injunctive relief where no present property right was actually prejudiced but merely threatened and liability only anticipated. Even if no property rights were involved in the action then before it and if only the plaintiff's status and personal rights were invaded, it stated that it would hold without hesitation that an individual has rights, other than property rights, which can be enforced in a court of equity. (Vanderbilt v. Mitchell, 72 N.J. Eq. 910.) In Edison v. Edison Polyform Mfg. Co. (73 N.J. Eq. 136,143), a case in which no element of trade competition was involved, an injunction issued to restrain the unauthorized use of plaintiff's name. This remedy was applied by the New Jersey court upon the principle that a property right inheres in *Page 395 a name and that a possibility of injury to the owner existed. Ideas founded on considerations of natural justice have in other instances been enforced and protective measures adopted by the courts of our own State. An early case decided by Chancellor KENT is Aymar v. Roff (3 Johns. Ch. 49). There a man who had gone through a marriage ceremony with an infant was ordered to "refrain from holding any conversation, or from having any intercourse, or correspondence with the said Eliza, so long as this order remains in force, under the pain of incurring a contempt." The principle announced in Hodecker v. Strickler (39 N.Y. Supp. 515; 20 App. Div. 245) has been the subject of adverse criticism (29 Harvard L.R. 673) and I think ought to be disapproved by us. The reasoning in such cases as Randazzo v.Roppolo (105 N.Y. Supp. 481); Bell v. Clarke (45 Misc. Rep. 272) and Hall v. Smith (80 Misc. Rep. 85) indicates to my mind a truer approach toward the realization of justice within the realm of equity. Among the most enlightened of modern equity cases is Greenberg v. Greenberg (218 App. Div. 104), where an injunction restrained a husband from prosecuting an action to obtain a judgment of divorce. The relief granted in that case was based upon the fact that "there are many conceivable uses to which such a judgment of divorce could be put, causing plaintiff expense, litigation, worry, annoyance and misrepresentation." It was to protect the present plaintiff from the same factors of legal wrong that the Special Term and a unanimous Appellate Division issued the injunction which is now so vigorously and successfully assailed. To hold that the Supreme Court is without power to exercise its discretion on such facts as this record reveals seems to me to run counter to the expanding trend of equity.
POUND, LEHMAN and KELLOGG, JJ., concur with HUBBS, J.; CRANE and O'BRIEN, JJ., dissent in part in separate opinions; CARDOZO, Ch. J., not voting.
Judgment accordingly. *Page 396