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Rosa v. Second Avenue Railroad

20 A.D. 334 Court N.Y. App. Div. English

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p. 334
Michael Rosa, an Infant, by Lucietta Rosa, his Guardian ad Litem, Appellant, v. Second Avenue Railroad Company, Respondent.

Headnote

Suing in forma pauperis—payment of the costs of a former action and security for future costs, not required.
Where a petition which has been presented for leave to prosecute as a poof person is sufficient in form, and an order has been made granting the application, it is erroneous for the court subsequently to vacate such order, upon proof that costs of a former action between the same parties were due and unpaid by the plaintiff to the defendant, and to make an order staying the plaintiff’s proceedings until their payment, and requiring him to give security for the costs of the pending action. . .....
p. 335
Appeal by the plaintiff, Michael Rosa, an infant, by Lncietta Rosa, his guardian ad litem, from an order of the Supreme Court, made at the New York. Special Term, and entered in the office of the clerk of the county of New York on the 30th day of June, 1897, vacating an exparte order allowing the plaintiff to sue as a poor person, staying the plaintiff’s proceedings until the payment of costs previously adjudged against him, and requiring him to furnish security for costs.
Benjamin Patterson, for the appellant.
Charles C. Nott, Jr., for the respondent.

The petition presented to Justice Pryor, upon the application of the plaintiff for leave to prosecute as a poor person, fully complied with the requirements of the statute, and for that reason it was-proper to grant the application. (Feier v. Third Ave. R. R. Co., 9 App. Div. 607 .) It was not proper to set aside the order granting that permission, unless it was made to appear either that some material facts were misstated, or that facts were suppressed which, if considered, should have required the court to refuse leave to prosecute as a poor person. No such condition of affairs is made to appear. If all the facts shown hy this record had been made to appear to the justice to whom the application for leave to prosecute as a, poor person was made, he would have known that certain costs of a former action adjudged to be paid by the plaintiff to the defendant had not been paid. But that fact was not sufficient to prevent the plaintiff from prosecuting this action. For that reason it was not proper to vacate that order. So long as that order stood, the remainder of the order staying the.plain tiff’s proceedings until the payment of those costs and requiring the plaintiff to give security for costs of this action was clearly improper. For that reason the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied,' with ten dollars costs.

Present — Patterson, Rumsey, Williams, O’Brien and Parker, JJ.

Order reversed, with ten dollars costs and disbursements.'

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