Opn. No. ( 1982 )

James D. Harrington, Esq. Town Attorney, Schaghticoke

You have asked whether a person who ran for office, was elected and took office under a name that was not the name given to him at birth may execute official documents under the same name used in running for office. You have advised us that subsequent to taking office, the current name became a legally changed name under Article 6 of the Civil Rights Law.

"Under the common law a person may change his or her name at will so long as there is no fraud, misrepresentation or interference with the rights of others (Smith v. United States Cas. Co., 197 N Y 420, 428-429; Matter of Wing, 4 Misc.2d 840). The statute affirms this right and the two procedures exist side by side supplementing each other (Smith v. United States Cas. Co., supra). Under common law the change is accomplished by usage or habit. When the statutory procedure is followed, a court order and public record verify the change. The statutory procedure differs only in the speed and certainty of the change and in the restriction that once the name is changed the applicant shall thereafter be known ``by no other name' except with the permission of the court (Civil Rights Law, § 64)." (Matter of Halligan, 46 A.D.2d 470, 471 [4th Dept, 1974].)

You have not indicated that anyone has alleged "fraud, misrepresentation or interference with the rights of others" under the circumstances. Certainly, the voters knew whom they were voting for. That person assumed the office to which he was elected and used the name by which the voters elected him. In executing official documents he used the name that identified him as the officer whom the voters had elected.

We conclude that a person who exercises his common law right to change his name and is elected under that name may continue to use it as an elected official so long as there was no fraud, misrepresentation or interference with the rights of others in the act of changing the name.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.