Majority
p. 82CHRISTIAN v. GOUGE. N. Y. Superior Court; Special Term, February, 1880.
Headnote
Security for Costs.—Suing in Forma Pauperis .A non-resident plaintiff will not be permitted to sue in this State in forma pauperis.
On a motion to vacate an order permitting a non-resident plaintiff to sue in foi’ma pauperis, he cannot be required to give security for costs.
Motion by defendant to vacate order permitting plaintiff to sne in forma pauperis, and for an order compelling her to file security for costs.
This action was brought by Annette G. Christian, against Edward H. Gouge and one Bache to recover $1,535, damages for breach of a contract made in Philadelphia, Penn., by which she agreed to render services to the defendants as an actress.
The plaintiff, upon a petition verified in Philadelphia, obtained an order for leave to sue in forma pauperis. After issue had been joined, the defendant Bache made this motion upon an affidavit of his attorney which stated upon information and belief that the plaintiff was at the time of beginning the action a non-resident of the State, and at the time of the motion resided in Philadelphia.
J. T. Clirisholm, for defendant Bache and motion.
James Broolcs Dill, for plaintiff, opposed.
The letter and policy of the acts in relation to security to be given by non-resident plaintiffs, indicate that it is not unjust or impolitic to refuse leave to a non-resident, to sue here, unless he give security for costs, even though, in fact, he is pecuniarily responsible. He must furnish some one who will respond for him in this State. If he cannot, the State does not furnish him the means of pursuing a remedy
p. 83
here. It seems to me inconsistent with this policy, that an irresponsible non-resident should be allowed to sue without even a liability for costs. I am of the opinion that the order allowing plaintiff to sue in forma pauperis should be vacated; but as the action was begun under the order relieving her from costs &c., she should have an election to discontinue without costs. In this motion she cannot be required to give security.