Eugene Anderson was adjudged an. habitual drunkard in April, 1888, and in May of that year his brother, James M. Anderson, the plaintiff, was appointed committee of his person. Eugene was placed in an institution known as the Brunswick Home, in Amityville, L. I., and while there he met another inmate of the home, the defendant Josephine M. Hicks. It seems that this woman had ’ been adjudged an habitual drunkard, one James Pearson being her committee. These two incompetents, appear to have been accorded a large measure of liberty, and in June, 1894, they were joined in marriage by a colored clergyman of the locality. It appears from the record that Eugene soon wearied of the relation, and begged his brother, the plaintiff, to annul the marriage. The record is full of letters written by Eugene to his brother,' urging action. The plaintiff, as “ Committee of the person and next friend of Eugene Anderson,” brought an action for the annulment of the marriage, resulting in a judgment in favor of the plaintiff, which was entered in the office of the clerk of the county of Westchester on the 6th day of September, 1896. On the 21st day of November, 1910, the notice of motion for the vacation of the judgment was served, and upon the motion coming on for a hearing the defendant was granted the relief prayed for. The plaintiff appeals from this order.
The learned justice at Special Term, in granting the order, handed down a memorandum in which he holds that, as the *295alleged lunatic was not a party to the action, the judgment is void, and that an order declaring its invalidity may properly he entered. The learned court declares that “I perceive no distinction in principle between an action brought by any third party under any of the Sections 1744, 1747, 1748 and 1750,” and relies upon the cases of Coddington v. Larner (75 App. Div. 532); Fero v. Fero (62 id. 470), and Wood v. Baker (43 Misc Rep. 310). There is, however, a distinction between these several provisions of the Code of Civil Procedure in their language, and while it is probably true that there is no abatement of the principle that the persons-to be affected by the judgment must be before the court, I am of the opinion that under the provisions of section 1747 of the Code of Civil Procedure the party in interest is before the court when he is represented by his relative, having an interest to avoid the marriage, otherwise a portion of that section would be inoperative. It is provided that ‘ ‘ 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 anytime after restoration to a sound mind; but in that case, the marriage shall not be annulled, if it appears that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound mind.” The lunatic himself is not permitted to bring the action while he is a lunatic, any more than an idiot is permitted to bring an action of this character (§ 1746). The cause of action is given to “ any relative * * * who has an interest to avoid the marriage,” in both sections, and the reason for this is obvious. The marriage of an idiot or a lunatic is void, because neither of them has the power to contract; neither has the power to dispose of property after the lunacy has been adjudged, and a relative who has an interest to avoid the marriage has this right, because otherwise the widow of the lunatic or idiot would be entitled to share in his estate. For this reason a relative who has an interest to avoid the marriage is permitted to act “after the'death of the luna*296tic in that condition.” Certainly, if the lunatic is a necessary party under the provisions of section 1747 of the Code of Civil Procedure, this provision for bringing the action after his death becomes inoperative, and I think that there is no occasion for such a construction. During the lunacy of an individual, after lunacy is adjudged, he is incapable of making any disposition of his property; he cannot by will disinherit his heirs. He has no .interest in his property, other than that which is vested in his committee, during the continuance of. his lunacy. During that time his heirs at law and next of kin have an expectancy in his estate, of which he has no power to divest them, and his relatives who have “an interest to avoid the marriage” are given the authority to tiring the action to annul the marriage which would otherwise divest them of their rights as heirs. The lunatic has ho interest in the marriage or its dissolution; no rights of his are affected, for he is, in law, incapable of making a contract or of disposing of his property. Any relative who has an interest to avoid the marriage is a party in interest, and he brings the action in a representative capacity, for the benefit of all of the relatives having an interest to avoid the marriage, and this power is extended after the death of the “lunatic in that condition, and during the life of the other party to the marriage.” The relatives of the lunatic can get no advantage from his property during his life; their rights are confined to his estate after his death. If he regains his mind he is then given authority to bring the action himself, for he then has an interest in the matter, though this right is limited by the provision that “the marriage shall not be annulled, if it appears that the parties freely cohabited as husband and wife, after the lunatic was restored to a sound' mind.”
If I am right, in this position, then Eugene Anderson was not a proper party to the action to annul this marriage. Being adjudged a lunatic prior to the marriage, he was incapable, at the time of the ceremony, of entering into the contract; he had no more power to dispose of any portion of his property by means of a marriage contract than by any other contract ór will,, and his relatives had an interest' in avoiding this marriage because it interposed a barrier to their *297rights in the event of his death before being restored to a sound mind, and his brother, who was acting as his committee under an order of the court, had an interest to avoid the marriage. While the order appointing the plaintiff as “ next friend ” does not fully comply with the statute, which gives the cause of action to “ any relative of the lunatic who has an interest to avoid the marriage,” the petition for such order recites that the plaintiff is “brother of Eugene Anderson, .and the Committee of his person, and was appointed such Committee by an order of this Court on the 19th day of May, 1888,” which would justify the inference that he was a relative having an interest in avoiding the marriage, and the irregularity is of no consequence at this time.
In the cases relied upon as authority by the learned court below, the statute made different provisions from those relating to idiots and lunatics. In Coddington v. Lamer (supra) it was held, under the provisions of sections 1747 and 1750 of the Code of Civil Procedure, that an incompetent person, not so adjudged at the time of the marriage, was entitled to be ' brought in as a party on his own motion. In that case Mrs. Lamer was declared incapable of conducting her own affairs, and a committee of her person and property was appointed after her marriage. A daughter by a former husband brought an action to set aside the marriage on the ground that at the time of the marriage the mother was a lunatic and incapable of contracting the marriage. The mother asked to be made a party to the action, and this was refused. On appeal it was held that she was entitled to be made a party defendant. In that case, however, the marriage was contracted at a time when the mother was presumptively sane; there had been no adjudication that she was insane, and upon this issue — the question of her sanity at the time of entering into the marriage — she was probably entitled to a hearing. (Gridley v. College of St. Francis Xavier, 137 N. Y. 327, 330.) No one is in law a lunatic until that fact has been judicially determined, and when the plaintiff’s mother in that case entered into the marriage contract she was presumptively sane, and she had a right to be heard upon the question of her competency. This is quite a different case from the case at bar, where both *298parties were incompetent as judically determined at the time the marriage was contracted. It is one thing to deny a person the right -to be heard when he requests it, quite another to say that a party is necessary to the proceeding-, and section 1747 does not make any provision for the lunatic to bring the action, or to appear therein, during the time that he is judicially a lunatic. Moreover, in the Coddington case the complaint also alleged that the marriage was brought about by “fraud and undue influence of the defendant,” which was an action provided for in section 1750 of the Code of Civil Procedure, which provides that it “may be maintained, at any time, by the party whose consent was so obtained,” and she was undoubtedly a necessary party to this action. ■
The - case of Fero v. Fero (supra) was likewise an action brought under the provisions of section 1750, where the mother of an infant brought the action to set aside the marriage on the ground that it was procured by force, fraud, etc., and it was held that the infant was a necessary party to the action.
The order appealed from should be reversed.
Order affirmed, with ten dollars costs and disbursements.