78 N.Y.S. 276 | N.Y. App. Div. | 1902
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.)
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.
