
    Frederic N. Blanc, Plaintiff, v. Elizabeth L. Blanc, Defendant. Frederic N. Blanc, Plaintiff, v. Elizabeth L. Waters, Defendant.
    (Supreme Court, New York Special Term,
    September, 1897.)
    Absolute divorce — Court may forbid guilty wife to use the name of her husband — Action to restrain such use unnecessary.
    A court having jurisdiction of the parties to an action for an absolute divorce, has power to decree, in the judgment awarded, that the guilty wife shall be prohibited from using the full, name, or surname . of her husband as her name or as any portion of her name; but where the judgment contains such a provision, the husband cannot, upon the' wife’s subseuqent use of his surname, maintain another action to restrain such use as he can obtain relief under the original judgment still in force.
    Motions to punish defendant for contempt and for an injunction restraining the use of the-ñame “ Baroness Blanc.”
    Dittenhoefer, Gerber & James, for plaintiff.
    Howe & Hummel, for defendant.
   Russell, J.

The substantial thing in controversy is the use of a name by the former wife, now divorced on account of her adultery. In the first case, the motion is to punish for contempt for her continued use of the name Baroness Blanc ” in defiance of the judgment of divorce providing*

“ It is .further ordered, adjudged and decreed that * * * that the defendant be prohibited from using the name of ‘ Blanc,’ or Frederic N. Blanc,’ as her name or any portion of her name.”

In the second case the same defendant is sued to enjoin her further use of the name " Baroness Blanc,” and the action is brought against her under the present name she wears, having remarried since "the divorce.

It is strenuously urged by the defendant’s counsel that the judgment of divorce exceeded the jurisdiction of the court in prohibiting the use of the name of her former husband, and, therefore, while using her real name “Elizabeth L. Waters,” in private life, she has, under the advice of counsel, used the name of “ Baroness Blanc ” for theatrical purposes in her vocation of an actress, presumably believing that thereby more prominence would be given to her in that vocation.

It is undoubtedly the rule that, while courts of equity have entertained jurisdiction in matters arising between husband and wife, even to the annulment of a marriage upon general equitable grounds, still actions for divorce on the ground of adultery are the creatures of statute, marriages having been regarded as sacramental obligations by ecclesiastical authority. The courts, therefore, have no common-law jurisdiction on the subject of divorce, but their power is confined to the exercise of the express powers conferred by statute, and such incidental ones as are necessary to the full exercise of proper relief. Erkenbrach v. Erkenbrach, 96 N. Y. 456.

The sole question of law, therefore, arising is whether a judgment of this court between the same parties, deciding that the court had jurisdiction to prohibit the use of the married name, may be assailed collaterally as without any jurisdiction to support it.

The ordinary rule of incidental power gives the judicial tribunal, which has lawful grasp of the subject of the action, authority to take into consideration and pass upon the rights which spring from the marriage, and afford such full relief as the wronged party is entitled to. Where a statute prescribes a new cause of action or gives additional remedy for wrongs or breach of contract, it is not necessary to prescribe in detail how far the courts may go in enforcing that remedy to give to the court the view of circumstances involved in the litigation, and the ultimate relief which shall be awarded.

Is the question of name borne by the wife one of those matters which-come from the inception of the marriage relation, and which ought to-terminate when she has by misconduct lost, her right to its use? By the old theory of marriage in the evolution from the period, when wives were regarded more as chattels than, beings, and as concubines than consorts, the ceremony made husband and wife one in the eye of the law. The wife left the parental roof, and her existence became united with that of the husband as a part of his household, the mother of his children and the sharer in his name. It was perhaps more emphatically so under the .customs flowing from the habits of the Saxon and Celtic races inhabiting England, and so transmitted through the various states of this country. Chapman v. Phoenix Bank, 85 N. Y. 449.

Does' not the wife’s misconduct, judicially announced and decided, sever the marital relation, and deprive her of the power to' further use the name which she obtained the right to use solely by the office of marriage? How can she farther claim the right to' identify herself with her former husband when all relations between them are so broken? Courts have a right to regard her use ■of the name as of serious consequence to the innocent husband. There are higher rights flowing out of the marriage than the pecuniary part, ns affecting either of the persons concerned. The unoffending party ought certainly to have the privilege of preventing the claim directly made, or so urged upon the public as to •deceive it, that the other is still the lawful spouse and still has the right to bear the name of that spouse. Such a husband may be •affected in a pecuniary way. Out of the marital obligation comes the duty to provide the necessaries for the wife-; and while after a decree of divorce, he may not be legally liable to persons from whom she purchases on his credit, yet others may be deceived and they may be the losers, and he be subjected to annoying and vexatious litigations. And, if such unoffending party desires to remarry, the use by the former wife of his name might be a serious impediment in gaining the consent of some worthy woman who might not want to be one of two women bearing the name of the' husband.

I think the court did not transgress its power when it held that the use of the name was a subject fairly within its consideration, and its determination cannot be assailed as without jurisdiction in an action which is res adjudidata as between the parties now present before the court. The motion, therefore, is granted to punish the defendant for contempt, but, as. she has acted under the advice ■of counsel, with some show of plausibility for her reasons of belief that she might have the right to use the name in the way she did, a light fine may be sufficient punishment for the present occasion. A fine of fifty dollars is, therefore, imposed. _ 1

In the second action, the only serious difficulty I have in arriving at the conclusion that the injunction should be allowed, arises upon the inquiry as to its necessity. The judgment for divorce, continuing in its effect as to the injunctive clause, does not require any assistance from a second injunction issuing in another action. On this ground, therefore, the motion is denied.

Ordered accordingly.  