Wemyss v. Allan — 88 A.D. 475

Majority

p. 475

James Wemyss, by Walter W. Wemyss, his Guardian ad Litem, Respondent, v. Mary Allan, Appellant.

Headnote

Leave to sue in forma pauperis — a good cause of action must be shown -^denied where the plaintiff’s father, his guardian ad litem, has sworn that he was worth ■ §300 over his debts.

Leave to prosecute an action as a- poor person will not be granted unless the plaintiff shows that he has a good cause of action. (Per O’Brien, Patterson and Laughlin, JJ.)

A person appointed guardian ad litem of his infant son, upon an affidavit, in which he states that he is worth §300 in excess of his debts and liabilities, will not be granted leave to prosecute the action as a poor person where it does not appear that his financial circumstances have changed since his appointment as guardian ad litem. (Per O’Brien and Patterson, JJ.)

Van Brunt, P. J., dissented on another ground.

p. 476

Appeal' by the defendant, Mary Allan, 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 2d day of September, 1903, denying the. defendant’s motion to vacate an ex parte order obtained by the plaintiff on the 22d day of June, 1903, allowing him to sue as a poor person and that plaintiff be required to furnish security for costs.

William Arrowsmith, for the appellant.

Charles Soble, for the respondent.

The defendant moved for an order vacating an ex parte order obtained by the plaintiff allowing him to sue as a poor person and asking that the plaintiff be required to furnish security for costs.

In the petition of Walter W. Wemyss for his appointment as guardian ad litem he stated that he was the father of the infant and worth the sum of $300 over his debts and liabilities. By a subsequent petition he avers that the infant has no rich relatives or friends from whom he could obtain pecuniary assistance or the necessary security for costs and has no means whatever of prosecuting the action, and, therefore, asked to be allowed to sue as a poor person. Upon this second' petition, supported by the affidavit of the attorney that the plaintiff informed him that he had made efforts and failed to obtain the necessary security, the court made an order allowing the plaintiff to sue as a poor person, and it is from an order made denying the defendant’s motion to vacate‘such order that the defendant appeals.

There are two reasons why the order allowing the plaintiff to. sue as a poor person should have been vacated. One is, that it appears from the first petition that the guardian ad litem is the father of the infant plaintiff, and that therein he swore that he was worth the sum of $300, and there is nothing to show in what respect his circumstances changed between his appointment and the time when, upon the second petition, the plaintiff obtained leave to sue as a poor person.

The other reason is that .the plaintiff fails to show that he has a good cause of action against the defendant; The injuries for which

Dissent

p. 477

damages are sought are alleged to have been caused by negligence, but there is nothing in the petitions from which it can be inferred that the defendant was in any way connected with the premises upon which the plaintiff was injured, either as owner, landlord, lessee or otherwise. As said in Weinstein v. Frank ( 56 App. Div. 275 ), “ The moving papers must also set forth facts showing that the applicant has a good cause of action.”

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order permitting the plaintiff to sue as a poor person should be granted, with ten dollars costs to abide the event, but with leave to the plaintiff to renew the application.

Patterson", J., concurred; Laughlin, J., concurred on last ground stated.

I dissent so far as costs are made to abide event and leave to renew is given.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order granted, with ten dollars costs to abide event, with leave to plaintiff to renew application.