
    .Louise A. Coddington, Respondent, v. Albert E. Larner, Defendant. Alma Louise Larner, Appellant.
    
      Pa/rly—an incompetent is a necessary party to an action to dissolve her marriage because of her incompetency and of fraud practiced upon her.
    
    After a woman had contracted a second marriage, she was adjudged to he an incompétent because of her excessive use of alcoholic liquors, and committees of her person and property were appointed. Thereafter a daughter of such woman hy her first marriage brought an action against the woman’s second husband to annul the second marriage upon the ground that her mother was, . at the time of such marriage, a lunatic, and upon the further ground that the marriage was procured hy the fraud and undue influence of the defendant.
    
      Held, that the incompetent was a necessary party defendant to the action, and that she was entitled to he brought in upon her own motion.
    Appeal by Alma Louise Earner 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 21st day of July, 1902, denying the appellant’s application to be made a party defendant to the action.
    
      W. W. MacFarland, for the appellant. ¡
    
      Gharries JBlandy, for the respondent.
   McLaughlin, J.:

On the 6th of June, 1899, Alma Louise Lamer, the appellant herein, was married to the defendant, Albert E. Lamer. On the eighteenth of May following she was adjudged, by reason of the excessive use of alcoholic stimulants, to be incapable of managing her person or her property and committees were appointed for that purpose, who qualified, since have been and now are acting as such. Thereafter, this plaintiff, a daughter by a former marriage, brought this action to have the marriage of her mother with the defendant annulled, upon the ground that the appellant at the time she was married to the defendant was a lunatic and unable to understand the nature of the contract and its effect, and also that the marriage was procured by fraud and undue influence of the defendant. After issue had been joined in the action, the appellant, upon a petition verified by her, applied to the court for leave to be made a party defendant. Her application was denied and from that order she has appealed.

The Code provides (§§ 1747,1750) that any relative of a party to a marriage who has an interest to avoid the marriage ’’ may maintaiu an action to have the same annulled, on the ground that one of the parties to it, at the time the same was contracted, was a lunatic, or when the consent of such party was obtained by force, duress or fraud. (§ 1743, subds. 3, 4.) But these sections of the Code must be read in connection with the other sections which contemplate -that all persons having an interest in the subject of the action shall be joined as plaintiffs or defendants. The appellant certainly has an interest in the subject of the action and is a necessary party to it and a determination cannot be had of the subject-matter of it unless she be made a party. (§§ 446-448.) 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.)

The order appealed from, therefore, must be . reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred..,

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  