Sumkow v. Sheinker

82 N.Y.S. 995 | N.Y. App. Div. | 1903

Lead Opinion

Patterson, J.:

This is an appeal from an order vacating an order which required the plaintiff to file security for costs, and permitting the prosecution of the action to be continued informa jpaujoens.

The order is defective, in that it does not comply with section 460 of the Code of Civil Procedure, as it omits to provide that the attorney named therein shall act without compensation. (Daus v. Nussberger, 25 App. Div. 185.) There is another objection to the maintenance of this order. The guardian ad litem, is the father of the infant plaintiff. When he was appointed he swore that he was worth the sum of $250. There is nothing in this record to show that his circumstances have changed since his appointment as guardian ad litem / and, such being the case, the motion for leave to sue as a poor person should have been denied. (Rutkowsky v. Cohen, 74 App. Div. 415 ; Muller v. Bammann, 77 id. 212.)

The order should be reversed, with ten dollars costs and disburse-ments, and the motion for leave to sue in forma pauperis denied, with ten dollars costs, and the order requiring security for costs reinstated.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.

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Dissenting Opinion

Laughlin, J. (dissenting):

I dissent upon the ground that the responsibility of the guardian ad litem does not affect the right of the infant to prosecute the action in forma pauperis. (Code Civ. Proc. §§ 458, 459; Feier v. Third Ave. R. R. Co., 9 App. Div. 607.)

Order reversed, with ten 'dollars costs and disbursements, and motion denied, with ten dollars costs; and order requiring security reinstated.'