Kaufmann v. Manhattan Railway Co. — 68 A.D. 94

Majority

p. 94

Annie Kaufmann, an Infant, by Ferdinand Kaufmann, her Guardian ad Litem, Respondent, v. Manhattan Railway Company, Appellant.

Headnote

Permission to sue in forma pauperis — when sufficient....reason-4herefór is -riot shown.

A petition by an infant for leave to prosecute an action as a po'or person, which .merely states that the petitioner has not now the means to prosecute the action, but does not state that she cannot procure such means,, or that she will be unable to present her cause unless the order is granted, and which further states that the petitioner receives wages, but does not show the amount or disposition thereof, or that her parents are unable to support her, is insufficient to justify ■the granting of the order.'

Appeal by the defendant, the Manhattan Railway Company, 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 28th day of October, 1901, granting the plaintiffs motion for leave to prosecute the action as a poor person.

Joseph H. Adams, for the appellant.

George II. Epstein, for the respondent.

This order must be reversed. In Weinstein v. Frank ( 56 App. Div. 275 ) we considered the general nature of such orders and held that it was not every person not worth $100 who could sue in forma pauperis,• but “ only those who otherwise would be unable to prosecute their action.” This petitioner merely says that she has not now the means to prosecute the action, but she does not say she cannot get them, nor that she will be unable to present her cause unless the order should be granted. She receives wages, but what her earnings are or whether she is compelled to support herself does not appear, nor is it shown that her parents are- not able to support her. Applications of this character have become very frequent, and they amount in most- cases to an abuse- of the statute authorizing them. The discretion was not properly exercised in

p. 95

this case, and the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present—Van Bront, P. J., Patterson, O’Brien and Laughlin, JJ.

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