27 N.Y.S. 980 | New York Court of Common Pleas | 1894
Before action brought, a guardian ad litem was appointed for the infant plaintiff. After action commenced, an order was made requiring the plaintiff to furnish security for costs; but, instead, plaintiff now moves for leave to prosecute the suit in forma pauperis. It is plain upon the terms of the statute (sections 458
The defendant objects that the court has directed that the plaintiff give security for costs. But the motion involves a vacatur of the order for security; and, the order out of the way, that permission to prosecute, the action as a poor person may be now conceded is plainly the opinion of the court of appeals. Shearman v. Pope, 106 N. Y. 664, 12 N. E. 713. Were it not so, then, as here, a defendant might, within two days after suit brought, preclude the plaintiff from the right of prosecuting in forma pauperis,—a right, as already seen, open to him at any time during the pendency of the action.
It is still insisted that, because the guardian ad litem is father of
It is argued, however, that the unequal operation of the statute appeals to the judicial discretion against the allowance of the order. Is it discretionary with the court to accord or to refuse a plaintiff the liberty of suing as a poor person when he conforms to the prescribed conditions? True, the language of the Code is that “the court may admit him to prosecute as a poor person;” but it is the settled rule of construction that when, by permissive words, power is conferred on an officer for the benefit of the public or third persons, “may” means “must,” and power is the equivalent of duty. 14 Am. & Eng. Enc. Law, pp. 979-981. That, upon compliance with the statutory conditions, one has a right to sue as a poor person, is apparent from the nature of the case and all the provisions of the law on the subject. Upon principle, judicial discretion is an anomaly in free government, and, from its liability to abuse, should be tolerated with the least possible latitude in operation. The state says all persons in a particular category may have access to its courts without expense; and for me to repel any one of the class upon my estimate of his desert would, I conceive, be inconsistent with the mandate of the law, and a precedent fraught with possibilities of arbitrary and unjust discrimination. If the legislature had intended to repose the power in the discretion of the judge, it would have said so in terms, as it did in conferring authority to revoke the leave to sue in forma pauperis. Code, § 462. If, however, I have a discretion, I exercise it in favor of the plaintiff. Motion granted; no costs.
Code Givi Proe. § 458, is as follows: “A poor person, whether an adult or infant, not being of ability to sue, who alleges that he has. a cause of action against another person, may apply by petition to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his action.”