JAMES M. ANDERSON, Committee of the Person and Estate and Next Friend of EUGENE ANDERSON, Appellant,
JOSEPHINE M. HICKS, Respondent.
APPEAL by the plaintiff, James M. Anderson, committee, etc., from an order of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of the county of Westchester on the 13th day of March, 1911,
granting the defendant's motion to vacate a judgment for the annulment of a marriage.
Benjamin N. Cardozo [Henry R. Barrett with him on the brief], for the appellant.
James Richards, for the respondent.
In 1888 one Eugene Anderson was adjudged an incompetent by reason of habitual drunkenness, and his brother, James M. Anderson, was appointed committee of his person, while one Walter Edwards was appointed committee of his estate. The incompetent was sent by the committee of his person to a 'Home' at Amityville, L. I. There he was allowed a large measure of personal freedom, which he took advantage of to have himself married ceremonially to a female inmate named Hicks, likewise there detained as an habitual drunkard under the direction of her committee. This happened in June, 1894. In 1895 the brother, James Anderson, applied to the Supreme Court in Westchester county for his appointment as 'the next friend' of the incompetent in order to bring an action for the annulment of the marriage on the ground that Eugene Anderson was a lunatic at the time of the marriage and so continued. The court at Special Term made an order that 'James M. Anderson be and he is hereby authorized as the next friend of said Eugene Anderson to maintain an action against said Josephine M. Hicks for the purpose of declaring void said marriage contract, and of annulling said marriage.' Thereafter James Anderson brought an action in the Supreme Court in Westchester county against the defendant Hicks for the annulment of the marriage between her and Eugene Anderson. The summons described the parties as follows: 'James M. Anderson, Committee of the person and next friend of Eugene Anderson, Plaintiff, against Josephine M. Hicks, Defendant.' The complaint alleged the marriage and the date thereof; it declared that Eugene Anderson was a lunatic at the time of the marriage and still remained so; it set forth that the plaintiff was a brother of the alleged lunatic and had an interest to avoid the marriage by reason of his relationship and his being entitled to a portion of the property of the alleged lunatic in the
event of his death as one of his heirs at law and next of kin; it set forth further that the plaintiff had been 'appointed the Committee of the person of said Eugene Anderson as an habitual drunkard,' and further that he had been appointed the next friend of said incompetent for the purpose of bringing this action. Eugene Anderson was not made a party to the action. The defendant Hicks appeared by attorneys but served no answer, and on her default a reference was had, and on the coming in of the referee's report a judgment was entered on her default annulling the marriage on July 5, 1896. In November, 1910, the defendant applied by petition to the Supreme Court in Westchester county, on notice to the plaintiff, for an order vacating and setting aside the judgment entered in 1896, on a number of specified grounds, and in support of this application she submitted an affidavit of Eugene Anderson, from which it appears that both of them are now and for many years since the judgment have been living together openly as man and wife. After a hearing on her motion, an order was granted vacating the judgment, and from this order the plaintiff appeals.
In granting the petition of the defendant Hicks, the learned Special Term based its decision on one ground, namely, that the failure to make Eugene Anderson a party to the action rendered the judgment void so far as it affected his matrimonial status, and that where a judgment annulling a marriage was void and ineffective as to one party to the marriage it was necessarily void and ineffective as to the other party. It is contended by the appellant that Eugene Anderson was neither a necessary nor a proper party to the action and that he was bound by the judgment because he was in the action in the person of his brother, the plaintiff, who was the committee of his person as an habitual drunkard. There had been no prior adjudication that Eugene Anderson was insane. He had been adjudged an incompetent by reason of habitual drunkenness. Habitual drunkenness does not always include necessarily insanity in a legal sense ( Lewis v. Jones, 50 Barb. 645, 667), whether or not it would fall within the definition in a medical sense. Yet the effect of an adjudication of incompetency by reason of habitual drunkenness is largely the same as to subsequent acts of the
incompetent while the adjudication remains in force, and subsequent contracts made by the incompetent so far as they affect his property are void, even though made in a temporary period of sobriety. ( Wadsworth v. Sharpsteen, 8 N.Y. 388.) Whether this inability to contract extends to a contract of marriage has not been decided in this State. In Payne v. Burdette (84 Mo.App. 332) it was held that an adjudication of lunacy, while conclusive as to the subsequent acts generally of the incompetent in relation to his property, simply raised a presumption of incompetency against the validity of a marriage entered into by the incompetent during the period of the wardship, which presumption could be rebutted by the parties to the marriage. The language of our statute in relation to the validity of the contract of marriage is essentially the same on this point as that of Missouri which was construed in Payne v. Burdette (supra). In Imhoff v. Witmer's Administrator (31 Penn. St. 243) it was held that while one adjudicated an habitual drunkard might not make a marriage settlement during the period of his wardship, he might, however, make a valid marriage. Whatever be the legal effect of an adjudication of habitual drunkenness upon a subsequent marriage of the incompetent during the wardship, I am of opinion that a mere committee of his person has no right, by virtue of such office, to represent him in court either for or against the marriage as a substituted party. The committee of the person, as well as the committee of the property, are simply the court's bailiffs, and have no other powers than are given each of them by statute or by the court. (Pharis v. Gere, 110 N.Y. 336, 347.) The right to maintain such an action as the incompetent might have brought if no committee had been appointed is given by the Code of Civil Procedure (§ 2340) to the committee of the property of the incompetent. While there was a committee of the property in this case, he was not made a party to this action.
There are many cases to be found in the earlier reports where a lunatic was held to be represented in court when his committee was a party to the action, but in all of these cases the committee was a committee of the property, or of person ...