41 N.Y.S. 821 | N.Y. App. Div. | 1896
Lead Opinion
The plaintiff’s papers are in strict accordance with the provisions of sections 458 and 459 of the Code.of Civil Procedure. She could say no more to invoke judicial action than she has said in these papers. No more could well be said.
The defendant filed no affidavits in opposition. If, therefore, her motion was properly denied, it is difficult to conceive of a case where an infant pauper may avail herself of the law which was expressly enacted for the benefit of her class. Prior to the amendment of 1891 there was a conflict of judicial opinion with regard to the right of infant paupers to sue as poor persons. In some cases it was held that where an infant sues by guardian ad litem, security for costs being a statutory right, the court had no power to destroy it by allowing the guardian to sue as a poor person. These cases
Now, as an infant, whether under or over fourteen years of age, cannot apply until a guardian ad litem is appointed (Matter of Byrne, 1 Edw. Ch. 41; Glasberg v. Dry Dock, E. B. & B. R. R. Co., 12 Civ. Proc. Rep. 50, per Patterson, J.), and as such guardian ad litem must, under the General Rides of Practice, be a competent and responsible person, the statute is practically abrogated if the competency and responsibility of the guardian constitute a complete answer to the application.
The infant here says, without a word of denial, that she has no means whatever; that she has a good cause of action against the defendant; and that she is a hired domestic in her guardian’s service. What was the court’s answer It was this — though you are an infant pauper you shall not have the benefit of the statute becáuse you have a responsible guardian. This responsible guardian you had to secure before you commenced your action. Having secured him you are no longer within the statute, or rather it is no abuse of discretion to deny your petition. This reasoning seems to be practically to nullify the amendment and to leave infant paupers .in quite as unfortunate a position as they were in before the Legislature sought to help them.
The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion for leave to sue in forma pauperis granted.
Williams and Patterson, JJ., concurred; Van Brunt, P. J., and Rumsey, J., dissented.
Dissenting Opinion
Motions of this kind are addressed entirely to the discretion of the court, and they are not to be granted unless a state of affairs is shown to exist in which justice requires it. They are not to be;
The court properly exercised its discretion in denying the motion, and the order should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., concurred.
Order. reversed, with ten dollars. costs and disbursements, and motion granted.