This is an appeal from a judgment dismissing plaintiff’s complaint upon the ground that it does not state facts sufficient to constitute a cause of action. Mr. Justice H. T. Kellogg writes sustaining the judgment. I concur in the result, but find ground for my exception in the following rule laid down in the opinion, viz.: “Accordingly, we hold that a sane party to a marriage with an insane party may not bring suit to avoid it on the ground of insanity.” In the abstract this is correct; that is, the insanity alone does not furnish ground for a cause of action, but to hold or seem to hold that any sane party may not, under any circumstance, maintain an action for annulment of marriage against an insane party does not seem to me tenable. Section 10 of the Domestic Relations Law defines marriage as a civil contract. Section 7 of the Domestic Relations Law provides that “ Actions to *534annul a void or voidable marriage may be brought only as provided in the Code of Civil Procedure.” This contemplates only the procedure to be followed. Section 1750 of the Code of Civil Procedure, so far as pertinent here, provides: “ An action to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by force, duress,. or fraud, may be maintained, at any time, by the party whose consent was so obtained.” This right to either party, and the jurisdiction of the court to hear such action* and render judgment therein, exist, independent of the provisions of statute. (Fisk v. Fisk, 6 App. Div. 432.) Any contract may be avoided for fraud if the party defrauded does not confirm the contract after the fraud is discovered by him. The waiver of the fraud may be effected in a variety of ways. Had the complaint alleged that defendant was insane at the time of the marriage and such fact was fraudulently concealed from plaintiff; that deception was practiced upon him in concealing defendant’s mental condition, and by such deception he was led to enter into such contract, and that he had not confirmed nor waived the fraud, the action could be maintained. The complaint does not contain such allegation, and, therefore, does not state facts sufficient to constitute a cause of action.