77 A.D. 212 | N.Y. App. Div. | 1902
Under date of September 5, 1902, Ingle Carpenter was appointed guardian ad litem of Charlotte Muller, an infant under the age of fourteen years, and qualified as such guardian. On September
It is not claimed, but that the papers upon which the application was made conformed in all respects to the provisions of the Code regarding such practice (§ 458 et seq.), or but that the averments contained therein were sufficient to authorize the court to exercise its discretion upon the application. Whether so claimed or not, the proof is sufficient for such purpose. Under such circumstances, the order authorizing the prosecution of the action as a poor person was properly granted. (Feier v. Third Ave. R. R. Co., 9 App. Div. 607.) It is said, however, that this court laid down an entirely different rule in Rutkowsky v. Cohen (74 App. Div. 415) and that under this authority the application should have been denied. It is not to be controverted that there is ground furnished by the latter decision for this contention. In the opinion which was handed down upon the decision of that appeal it was made to appear that the guardian had shown himself to be responsible upon his application to be appointed as such, and that, therefore, the application for leave to prosecute might have been properly denied unless it was made to appear that such guardian did not have, at the time the application was made for leave to prosecute as a poor person, money or property sufficient to give security for costs. The opinion refers to the guardian exclusively, and is most unfortunate in this respect, for the reason that it was not the intention of the court to determine' that when the guardian was possessed of sufficient means an order for leave to prosecute as a poor person would be denied. Such a
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Order affirmed, with costs.