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 *876do 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.