Malkin v. Postal Typewriter Co. — 95 A.D. 205

Majority

p. 205

Thomas H. Malkin, an Infant, by Thomas G. S. Malkin, his Guardian ad Litem, Respondent, v. The Postal Typewriter Company, Appellant.

Headnote

JSuit in forma pauperis — the consent of an attorney to act “ without compensation except the statutory costs ” is sufficient.

On an application by an infant plaintiff for leave to sue in forma pauperis, the attorney nominated by the plaintiff filed with the petition a consent to act as attorney and counsel for the plaintiff- “ without compensation except the statu

p. 206

tory costs.” The Special Term granted the motion conditioned upon the filing by the attorney nominated, within two days after the entry of the order, of a consent to act as such attorney without compensation. Such a consent was thereafter duly filed.

Mdd, that assuming that the plaintiff and his guardian were ignorant of the fact that the attorney had finally stipulated that he would act without compensation, and not without compensation except statutory costs, their ignorance did not require the reversal of the order, as, in view of section 467 of the Code of Civil Procedure, which provides, “ Where costs are awarded in favor of a person, who had been admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs,” they could not be prejudiced by such ignorance.

Appeal by the defendant, The Postal Typewriter Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of January, 1904, vacating an order bearing date the 14th day of December, 1903, which required the plaintiff to give security for costs and granting leave to the plaintiff to prosecute the action as a poor person.

William M. Beard, for the appellant.

Adolph Huger, for the respondent. .

We are of opinion that the papers áre sufficient to sustain the order of the Special Term that the plaintiff might sue informa pauperis. Only one point made justifies discussion. Be who was prayed for as attorney filed with the petition a consent that he would act as attorney and counsel for- the plaintiff “ without compensation except the statutory costs.” The Special Term ordered that upon the filing by the attorney nominated, within .two days after the entry of the order, of a consent to act as such attorney without compensation, said attorney be appointed to act without compensation and to make no charge or claim for counsel fees upon the infant plaintiff. .Such ,a consent was thereafter duly filed.

It is- contended that the order cannot stand, because it does not appear that the prior agreement' was ever canceled or that the plaintiff ever knew or' consented to the new stipulation. We are

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cited to Cahill v. Manhattan R. Co. ( 38 App. Div. 314 ). Assuming, although there is no express statutory requirement, that the court must be satisfied of such knowledge of the plaintiff, and that the decision in Cahill’s case is sound, nevertheless the decision does not apply in this case, for it clearly appears that the infant, a lad seventeen years old, and the guardian ad litem, his father, did understand, at least, that the attorney originally had agreed to prosecute the action without compensation except the statutory costs, and that any money recovery was for the benefit of the infant. Indeed, if we adhere to the letter of the guardian’s affidavit, it sets forth that the costs, as well, are for the benefit of the infant, but probably that statement is not in the form intended by the affiant. The only possible ignorance then is that the attorney has stipulated finally that he would act “ without compensation,” and not “ without compensation except the statutory costs.” But it does not appear that either counsel has considered section 467 of the Code of Civil Procedure, which reads: “ Where costs are awarded in favor of a person, who had been admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs.” I cannot see, therefore, that either the plaintiff’s or the guardian’s case is prejudiced by such ignorance, inasmuch as in any event the costs recovered are paid to the attorney and distributed to others than the infant or the guardian.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Cahill v. Manhattan Railway Co. 38 App. Div. 314 N.Y. App. Div. 1899-03-24 p. 207