49 N.Y.S. 291 | N.Y. App. Div. | 1898
• This action was brought by the plaintiff, as' an administratrix, to recover damages caused by the death of her • intestate, alleged to have been due to the negligence of the defendant. The plaintiff moved upon her own petition, setting up her appointment as administratrix, and, amongst other things, alleging that she was a married woman and was not worth the sum of $100 besides her wearing apparel and the subject-matter of this action, and that she had no-means whatever to defray the necessary expenses in the prosecution of this action.
There was no allegation whatever contained in the petition as to the condition of the estate of which she was administratrix. It is clear that, under this condition of proof, there' was no evidence before the court which justified it in making the order appealed from.
Furthermore, there was nothing in the order assigning any counsel to prosecute the- action as required by section 460 of the Code of Civil Procedure ; nor was there any provision that such counsel should act.therein without compensation as is also required by the section. In all cases where an application is made for an order admitting a party to prosecute as a poor person, it would seem to be the better practice-to file the consent of the attorney assigned to prosecute without compensation, with the moving papers, and also to have a provision that he shall act without compensation incorporated in the order.
Barrett, Rumsey, Patterson and O’Brien, JJ;, concurred.
Order reversed, with ten dollars costs and disbursements, and. motion denied, with ten dollars costs.
