Walter v. Walter

Judgment and order affirmed, with costs, on the opinion of Page, J., at Special Term. Order filed.

I am unable to concur in the affirmance of this order, because I think that it rests upon too technical a construction of section 2340 of the Code of Civil Procedure.

It is clear that from the earliest times courts of equity have entertained actions to annul marriages upon the ground of lunacy of one of the parties when the marriage was entered into, or on the ground of fraud, and this in pursuance of their general equity powers, and not in consequence of any statute. Griffin v. Griffin, 47 N. Y. 134. The fundamental error of the court below, as I view it, is the assumption that, as to this class of cases, the court has no inherent jurisdiction. While that is true of most matrimonial actions, it is not true of an action to annul for lunacy. Sections 1747 and 1748 of tiic Code of Civil Procedure did not confer upon the Supreme Court jurisdiction to annul a marriage for such cases, but merely provided that certain persons, other than the lunatic, might sue for such an annulment. The sections did not touch the right of the lunatic himself to bring such an action, which he could dpi only through a committee. These sections were imported into the Code from the Revised Statutes. Some years after the reenactment of those sections in the Code section 2340 was adopted, which provides:

“A committee of the property” of an incompetent “appointed as prescribed in this title may maintain in his own name, adding his official title, any action or special proceeding which the person with respect to whom he is appointed might have maintained if the appointment had not been made.”

We have the authority o.f Mr. Throop, one of the revisers, for the proposition that the purpose of this latter section was, “to embrace all cases where a remedy is pursued.” Throop’s Annotated Code 1880, note to section 2340. And obviously I think it should be so construed as to carry out that purpose. It cannot be confined to actions which a lunatic could himself have brought after office found, but before the appointment of a committee; for that would have deprived it of all meaning and effect, since by the fact of his adjudication as a lunatic he ceased to enjoy capacity to sue. The true meaning of the section is, as I think, that the committee of a lunatic may bring any action or proceeding which his ward might have brought if he had not been adjudicated a lunatic. I therefore think that an action like the present may be maintained by the persons mentioned in sections 1747 and *7181748, and also by a committee under section 2340. If this view is correct, section 7 of the Domestic Relations Law, to the effect that “actions to annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure,” offers no obstacle to an action by the committee of a lunatic.

I think that the order should be reversed, and the motion denied.