Anderson v. Hicks

Carr, J.: ■ In 1888 one Eugene Anderson was adjudged an incompetent by reason of habitual drunkenness, and his; brother, James M. Anderson, was appointed committee of his person, while one Walter Edwards was appointed committee of his estate. The incompetent was sent by the committee of his person to a “Home” at Amityville, L. I. There he Was allowed a large measure of personal freedom, which he took advantage of to have himself married ceremonially to a female inmate named Hicks, likewise there detained as an habitual drunkard under the direction of her committee. This happened in June, 1894. Tn 1895 the brother, James Anderson, applied to the Supreme Court in Westchester county for his appointment as “the next friend ” of the incompetent in order to bring an action for the annulment of the marriage on the ground that Eugene Anderson was a lunatic at the time of the marriage and so continued. The court at Special Term made an order that “ James M. Anderson be and he is hereby authorized as the next friend of said Eugene Anderson to maintain an action against said Josephine M. Hicks for the purpose of declaring void said marriage contract, and of annulling said marriage.” Thereafter James Anderson brought an action in the Supreme Court in Westchester county against the defendant Hicks for the annulment of the marriage between her and Eugene Anderson. The summons described the parties as follows: “ James M. Anderson, Committee of the person and next friend of Eugene Anderson, Plaintiff, against Josephine M. Hicks, Defendant.” The complaint alleged the marriage and the date thereof; it declared that Eugene Anderson was a lunatic at the time of the marriage and still remained so; it set forth that the plaintiff was a brother of the alleged lunatic and had an interest to avoid the marriage by reason of his relationship and his being entitled to a portion of the property of the alleged lunatic in the [291] event of his death as one of his heirs at law and next of kin; it set forth further that the plaintiff had been “ appointed the Committee of the person of said Eugene Anderson as an habitual drunkard,” and further that he had been appointed the next friend of said incompetent for the purpose of bringing this action. Eugene Anderson was not made a party to the action. The defendant Hicks appeared by attorneys but served no answer, and on her default a reference was had, and on the coming in of the referee’s report a judgment was entered on her default annulling the marriage on July 5, 1896. In November, 1910, the defendant applied by petition to the Supreme Court in Westchester county, on notice to the plaintiff, for an order vacating and setting aside the judgment entered in 1896, on a number of specified grounds, and in support of this application she submitted an affidavit of Eugene Anderson, from which it appears that both of them are now and for many years since the judgment have been living together openly as man and wife. After a hearing on her motion, an order was granted vacating the judgment, and from this order the plaintiff appeals. In granting the petition of the defendant Hicks, the learned Special Term based its decision on one ground, namely, that the failure to make Eugene Anderson a party to the action rendered the judgment void so far as it affected his matrimonial status, and that where a judgment annulling a marriage was void and ineffective as to one party to the marriage it was necessarily void and ineffective as to the other party. It is contended by the appellant that Eugene Anderson was neither a necessary nor a proper party to the action and that he was bound by the judgment because he was in the action in the person of his brother,-the plaintiff, who was the committee of his person as an habitual drunkard. There had been no prior adjudication that Eugene Anderson was insane. He had been adjudged an incompetent by reason of habitual drunkenness. Habitual drunkenness does not always include necessarily insanity in a legal sense (Lewis v. Jones, 50 Barb. 645, 667), whether or not it would fall within the definition in a medical sense. Yet the effect of an adjudication of incompetency by reason of habitual drunkenness is largely the same as to subsequent acts of the [292] incompetent while the adjudication remains in force, and subsequent contracts made by the incompetent sp far as they affect his property are void, even though made in ú temporary period of sobriety. (Wadsworth v. Sharpsteen 8 N. Y. 388.) Whether this inability to contract extends to a contract of marriage has not been decided in this State. In Payne v. Burdette (84 Mo. App. 332) it was held that an adjudication of lunacy, while conclusive as fc> the subsequent acts generally of the incompetent in relation to his property, simply raised a presumption of incompetency against the validity of a marriage entered into by the incompetent during the period of the wardship, which presumption could be rebutted by the parties to the 1 marriage. The language of our statute in relation to the validity of the contract of marriage is essentially the same on this point as that of Missouri which was construed in Payne v. Burdette (supra). ■ In Imhoff v. Witmer's Administrator (31 Penn. St. 243) it was held that while one adjudicated an habitual drunkard might not make'a marriage settlement during the period of his wardship, he might,; however, make a valid marriage. Whatever be the legal effect of an adjudication of habitual drunkenness upon a subsequent marriage of the incompetent during the wardship, I am of opinion that a ■ mere committee of his person has no right, by virtue of such office, to represent him in court either for or against the marriage as a substituted party. The committee of the person, as well as the committee of the property, aré simply the court’s bailiffs, and have no other powers than are given each of them by statute or by the court. (Pharis v. Gere, 110 N. Y. 336, 317.) The right to maintain such an action as the incompetent might have brought if no committee had been appointed is given by the Code of Civil Procedure _(§ 2340) to the committee of the property of the incompetent. While there was a committee of the property in this case, he was not made a party to this action. There are many cases to be found in the earlier reports where a lunatic was held to be represented in court when his committee was a party to the action, but in all of these cases the committee was á committee of the property, or of person and property, of the incompetent. The plaintiff, however, had the [293] right to maintain this action under section 1747 of the Code of Civil Procedure as a relative of the alleged lunatic. In his complaint he sets forth a cause of action under this section, as well as a cause of action under section 1748, as a next friend. There was an evident intent to rely upon both sections, although the latter section applies only “Where no relative of the idiot or lunatic brings an action to annul the marriage.” But the plaintiff, suing as a relative, does not so stand in the shoes of the alleged lunatic as to represent him by substitution. ' In such a case the alleged lunatic is not only a proper but an absolutely necessary party to the action. (Coddington v. Larner, 75 App. Div. 532.) It was said in the case last cited: “It is certainly a novel if not a startling proposition that a judgment can be procured dissolving a marriage contract without having both of the parties to' it before the court. Manifestly this cannot be done. (Fero v. Fero, 62 App. Div. 470.) ” It is urged, however, that section 1747 is susceptible of a construction which excludes the necessity of making the alleged lunatic a party to the action. This result is based upon the language of the section, which reads as follows: “An action to annul a marriage on the ground that one of the parties thereto was a lunatic may be maintained at any time during the continuance of the lunacy, or after the death of the lunatic in that condition, and during the life of the other party to the marriage by any relative of the lunatic who has an interest to avoid the marriage.” It is contended that if the action may be maintained when the alleged lunatic is dead, and as he cannot then be a party, it may be maintained while he is alive without making him a party. This contention is so plainly a non sequitur as to require no discussion. Whether this action was brought by the plaintiff as a relative or as. the next friend of the alleged lunatic, the incompetent should have been made a party, and as the action proceeded to judgment without his presence therein, the court had not before it the parties necessary for a complete determination of the only controversy involved. I am not at all impressed with the further argument of the appellant that, because Eugene Anderson," the alleged lunatic, wrote numerous letters to the plaintiff urging him to bring the [294] action and press it through, he is thereby to be considered bound by the judgment to the same effect as if he had been made a party. The action was brought on the theory that he was then a lunatic. His letters to the plaintiff show that he had then repented his bargain and was tired of his new spouse. But if he was then a lunatic he could not estop himself, and the plaintiff claims consistently that Eugene was a lunatic ■ before the marriage, when it was made and ever since. The order of the Special Term should be affirmed, with ten dollars costs and disbursements. Jenks, P. J., Thomas and Rich, JJ., concurred; Woodward, J., read for reversal.