
    Moritz Walter and Others, Individually and as Committee of the Person and the Property of Herman N. Walter, an Incompetent Person, Appellants, v. Anna Kuethe Walter, Respondent.
    First Department,
    December 30, 1915.
    Incompetent persons —power of committee of lunatic to bring action to annul marriage — provisions of Code of Civil Procedure construed.
    The committee of the person and property of an incompetent may not bring an action to annul a marriage contracted by the incompetent before the adjudication of incompetency, upon the ground that the incompetent was a lunatic at the time of the alleged marriage, and was incapable of entering into a marriage contract.
    The fact that in sections 1747 and 1748 of the Code of Civil Procedure, providing by whom such an action may be maintained, there is no mention of the committee of the incompetent, is significant of the legislative intent to exclude him from the right to bring such an action, and the maxim expressio unius exelusio alterius applies.
    Section 2340 of the Code of Civil Procedure, providing that “A committee of the property, 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,” is limited by the provisions of section 1748, and does not by implication confer power upon the committee to bring an action to annul a marriage.
    Scott, J., dissented, with opinion.
    
      Appeal by the plaintiffs, Moritz Walter and others, individually and as committee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of July, 1915, granting defendant’s motion for judgment on the pleadings after an answer had been served, and also from the judgment entered in said clerk’s office on the 26th day of July, 1915, dismissing thé complaint pursuant to- said order. .
    
      Emil Goldmark, for the appellants.
    
      James A. Gray, for the respondent.
   Judgment and order affirmed, with costs, on opinion of Page, J.

Present — Ingraham, P. J., McLaughlin, Laughlin, Scott and Dowling, JJ.; Scott, J., dissented.

The following is the opinion of Page, J.:

Page, J.:

This motion was made upon an order for plaintiffs to show cause, based upon the pleadings and an affidavit, why judgment should not be entered herein in favor of the defendant and against Moritz Walter, Clarence J. Walter and Edwin Walter, as, committee of the person and property of Herman N. Walter, an incompetent, upon the ground that the said persons, as committee, “have no legal capacity to sue to annul the marriage of said Herman N. Walter upon the ground that the said Herman N. Walter was at the time of said alleged marriage a lunatic, and was incapable of entering into a marriage contract, or that the said marriage was caused by force and duress of the defendant, because the said Herman N. Walter was a lunatic and incapable of consenting to the marriage, and for want of understanding, and for such other and further relief as the defendant may be entitled to.” The inartificial use of language unnecessarily complicates the consideration of the motion. Lack of legal capacity to sue has reference to some legal disability of the plaintiff, such as infancy, idiocy, adjudged insanity or want of title in the plaintiff to the character in which he sues which prevents his bringing any action in the courts in his own behalf, and not a fact that the complaint fails to show a right of action in the plaintiff. (Ward v. Petrie, 157 N. Y. 301, 311; Ullman v. Cameron, 186 id. 339, 343.) The objection that the plaintiff has not legal capacity to sue must be taken by demurrer or answer (Code Civ. Proc. § 488, subd. 3; Id. § 498), and if not so taken is deemed to have been waived (Id. § 499). If, therefore, the purpose of this motion is to urge the objection that the plaintiffs have not legal capacity to sue, the objection, even if sound, has been waived by the defendant not having demurred on that ground. Legal capacity in a committee of an incompetent person to sue has been expressly conferred by statute, and there is no claim that the appointment was not regular and vested them with the title in which the suit was brought. (Code Civ. Proc. § 2340.) This would require a denial of the motion. The motion has, however, been fully argued and briefed as a motion for judgment on the pleadings. I shall ignore the words in the order, “have' no legal capacity to sue,” and treat it as a motion for judgment upon the pleadings on the ground that the complaint fails to state facts sufficient to show a right of action in the plaintiffs as committee, which may properly be done under the request for general relief. This was probably the motion that defendant’s attorney had in mind, but inadequately expressed. The question to be determined is: May the committee of the person and property of an incompetent, as such, bring an action to annul a marriage contracted by the incompetent before the adjudication of incompetency upon the ground that the incompetent was a lunatic at the time of the alleged marriage and was incapable of entering into a marriage contract ? This question, so far as I have been able to discern, has never been determined. The court has no inherent or common-law jurisdiction in matrimonial actions. The Legislature has conferred power on the court to annul marriages, grant divorces or legal separations in certain specified cases, and has prescribed the persons who may invoke these powers. In the instant case the law applicable is to be found in sections 1747 and 1748 of the Code of Civil Procedure: “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. Such an action may also be maintained by the lunatic at any time after restoration to a sound mind. * * * Where no relative of the * * * lunatic brings an action to annul the marriage, as prescribed in * * * the last * * * [section], the court may allow an action for that purpose to be maintained at any time during the lifetime of both the parties to the marriage by any person as the next friend of the * * * lunatic. But this section does not apply where the marriage might have been annulled at the suit of the lunatic, as prescribed in the last section.” It will be seen that the right to bring an action is limited to any relative who has an interest to avoid the marriage, a next friend or the lunatic after restoration to a sound mind. There is no mention in these sections of the committee of the incompetent. If the Legislature had intended that the committee should have that power it could very easily have incorporated a few words in the section apt to express such intent. The failure to mention the committee is significant of the legislative intent to exclude him from the right to bring such an action. The expression “next friend” has a definite and well-established meaning, i. e., “ one who, without being regularly appointed guardian, acts for the benefit of an infant, married woman or other person not sui juris. ” (2 Bouvier Law Diet. [Rawle’s Rev.] 500.) Without express statutory authority an action cannot he prosecuted by a guardian ad litem, or next friend where a committee has been appointed. (Rankert v. Rankert, 105 App. Div. 37, 39.) The Pode provides for the appointment of a committee for the incompetept, and gives him the right to prosecute actions on behalf of his ward. There being a well-known and recognized distinction between a next friend of and a committee of a lunatic, the Legislature must have had this distinction in view when the Code was enacted. The fact that the husband or wife of the incompetent is frequently appointed the committee may have been in the minds of the legislators, but whatever their reason it seems clear to me that having given the power to bring such an action to the next friend and having failed to mention the committee, the maxim expressio unius est exclusio alterius applies, and shows the legislative intent to exclude the committee of the lunatic from the provisions of this section of the Code. (See Mackey v. Peters, 22 App. Cas. Dist. of Col. 341.) The learned counsel for the plaintiff argues that the power to bring such an action arises by implication from the provisions of section 2340 of the Code of Civil Procedure, which reads as follows: “A committee of the property, 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.” The marriage with a lunatic is not void, but voidable. (Dom. Eel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 7, subd. 2.) As we have seen, the right to elect to avoid the marriage vests in the lunatic only after restoration to a sound mind, i. e., if he has been judicially declared incompetent after he shall be judicially declared competent, in which event his committee would be discharged. (Code Civ. Proc. § 2343.) Unless the lunatic on recovery of his reason elects to bring an action to annul the marriage it would continue in full force and effect. Thus it can only be annulled by an affirmative act on his part. The right to make this election does not vest in the committee. While it may be said that the provision of section 1748 for the maintenance of such an action by a next friend shows a right of action in the incompetent, for a next friend can only bring an action in the right of the person non sui juris, nevertheless, the special provision in section 1748, it seems to me, limits the general language of section 2840 and excludes the committee from the prosecution of an action of this character. Uor do I think that the plaintiffs’ argument is sound: that as the committee would be a necessary party defendant he may become a plaintiff. The incompetent is a necessary party. (Coddington v. Larner, 75 App. Div. 532; Anderson v. Hicks, 150 id. 289.) He has been made a party in this action by order of the court. It is well settled that the representative and the person whom he represents are not both necessary parties. As the same persons are the plaintiffs and the committee, if it should appear that their interest was inimical to the incompetent, the court would appoint other persons to represent him; if not, they having been served with process, will be charged with the duty of protecting his rights. The motion will be granted, and the action, in so far as it purports to be brought by plaintiffs as committee of the incompetent, is dismissed, with ten dollars costs. I would suggest that there is no necessity of serving an amended complaint. The order may provide that the words individually and as committee of the person and property of Herman 1ST. Walter, an incompetent person,” be stricken from the title, and that paragraphs 1 and 2 of the complaint be stricken out. This leaves sufficient allegations in the complaint to sustain the cause of action of the plaintiffs, as relatives of the incompetent having an interest to avoid the marriage, and does not in any way prejudice the rights of the defendant under her answer already served. Settle order on notice.

Scott, J. (dissenting):

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 tlie 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 the Code of Civil Procedure did not confer upon the Supreme Court jurisdiction to annul a marriage for such causes, 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 do only through a committee. These sections were imported into the Code from the Bevised Statutes. (B. S. pt. 2, chap. 8, tit. 1, art. 2, §§ 25-27; 2 B. S. 142,143, §§ 25-27.) At the same time of the re-enactment of those sections in the Code, section 2340 was adopted, which provides: “ A committee of the property, 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.” (See Laws of 1880, chap. 178; Laws of 1880, chap. 245, § 1, subd. 2, ^ 4; Id. § 1, subd. 50; Laws of 1874, chap. 446, tit. 2, § 5.) We have the authority of 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 Civ. Proc. 1880, note to § 2340.) And obviously I think it should he so construed as to carry out that purpose. It cannot be confined to actions which a lunatic could himself have brought after office found hut 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, 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 he maintained by the persons mentioned in sections 1747 and 1748, and also by a committee under section 2340. If this view is correct section 7 of the Domestic Belations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19), 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.  