Traver v. Jackman — 98 A.D. 287

Majority

p. 287

Louis Traver, an Infant, by Jennie Benson, his Guardian ad Litem, Appellant, v. Stephen E. Jackman, Respondent.

Headnote

In forma pauperis —what must be shown to sustain an order authorizing a plaintiff to so sue — sufficiency of a verified complaint.

The papers used upon a motion by an infant plaintiff for leave to sue as a poor person are fatally defective, where they do not show that the infant has a good cause of action and that the proposed attorney for the plaintiff has agreed to conduct the action without compensation.

A certificate of the opinion of an attorney to the effect that the infant has a good cause of action is insufficient to establish that fact.

Semble, that a verified complaint, in which sufficient facts to make out a good cause of action are stated positively, and not upon information and belief, would be sufficient.

Appeal by the plaintiff, Louis Traver, an infant, by Jennie Benson, his guardian ad litem, 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 August, 1904, requiring the plaintiff to file security for costs, and also from

p. 288

an order entered in said clerk’s office on the 19th day of August, 1904, denying the plaintiff’s motion for leave to prosecute this action as a poor person.

William J. McArthur [Richard A. Rendich with him on the brief], for the appellant.

The defendant’s motion to compel the infant plaintiff to give security for costs was properly granted under subdivision 5 of section 3268 of the Code of Civil Procedure,.which was in force at the time when the motion was heard and decided (See Laws of 1891, chap. 170), although that subdivision has now been repealed by chapter 524 of the Laws of 1904, which took effect on September 1, 1904.

The counter motion in behalf of the infant for leave to sue as a poor person, which was noticed subsequently to the defendant’s motion but came on for hearing at the same time, was properly denied. There were two fatal defects in the moving papers. It was essential to show that the infant had a good cause of action. ( Weinstein v. Frank, 56 App. Div. 275 ; Wemyss v. Allan, 88 id. 475.) This was not made to appear otherwise than by a mere certificate of the opinion of an attorney to that effect, and such a certificate was pronounced insufficient in the first of the cases above cited. A verified complaint in which sufficient facts to make out a good cause of action were stated positively, and not upon information and belief, might take the place of an affidavit as evidence in an application of this kind that a sufficient cause of action existed in favor of the plaintiff, but the complaint in this case is unverified. The other defect in the motion papers is the absence of any agreement on the part of the proposed attorney to conduct the action without compensation. This has been held to be essential. (Helmprecht v. Bowen, 87 Hun, 362 .)

It follows that both the orders under review should be affirmed.

All concurred.

Orders affirmed, with ten dollars costs and disbursements.