Daus v. Nussberger — 25 A.D. 185

Majority

p. 185

Anna Daus, as Administratrix, etc., of Eugene Fanchon, Deceased, Respondent, v. Marc Nussberger, Appellant.

Headnote

Application hy an administratrix to sue in forma pauperis—the poverty of the estate as well as that of the administratrix must he shown — counsel should he designated to serve without compensation — his consent should he filed.

An order permitting an administratrix to prosecute as a poor person an action to ■ recover damages for the death of her intestate, caused by the alleged negligence of the defendant, is improperly granted where the petition, although alleging the poverty of the administratrix, shows nothing as to the financial condition of the estate of her intestate, and where the order does not, as required by sec

p. 186

tion 460 of the Code of Civil Procedure, assign counsel to prosecute the action and contains no provision that such counsel shall serve therein without compensation:

In such a case the consent of counsel to act should he filed.

Appeal by tbe defendant, Marc Nussberger, 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 8th day of December, 1897, permitting the plaintiff to prosecute the action as a poor person.

F. Barker,. for the appellant. •

L. W. Harburger, for the- respondent.

• This action was brought by the plaintiff, as' an administratrix, to recover damages caused by the death of her • intestate, alleged to have been due to the negligence of the defendant. The plaintiff moved upon her own petition, setting up her appointment as administratrix, and, amongst other things, alleging that she was a married woman and was not worth the sum of $100 besides her wearing apparel and the subject-matter of this action, and that she had no-means whatever to defray the necessary expenses in the prosecution of this action.

There was no allegation whatever contained in the petition as to the condition of the estate of which she was administratrix. It is clear that, under this condition of proof, there' was no evidence before the court which justified it in making the order appealed from.

Furthermore, there was nothing in the order assigning any counsel to prosecute the- action as required by section 460 of the Code of Civil Procedure ; nor was there any provision that such counsel should act.therein without compensation as is also required by the section. In all cases where an application is made for an order admitting a party to prosecute as a poor person, it would seem to be the better practice-to file the consent of the attorney assigned to prosecute without compensation, with the moving papers, and also to have a provision that he shall act without compensation incorporated in the order.

p. 187

For the reasons above stated the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barrett, Rumsey, Patterson and O’Brien, JJ;, concurred.

Order reversed, with ten dollars costs and disbursements, and. motion denied, with ten dollars costs.