Majority
p. 52Mary Conboy, by Guardian, Plaintiff, v. Philip Ayres, Defendant. (Supreme Court, Kings Special Term, October, 1898.)
Headnote
Security for costs by infant plaintiff — Ex parte order, allowing suit in forma pauperis, not a defense.An order allowing one to procure in forma pauperis cannot be obtained eco parte after action begun, and hence sucfli an order is no answer to a motion made to compel an infant plaintiff to give security for costs.
This is a motion that the plaintiff file security for costs, being an infant, brought on upon the usual order requiring security to be filed, or to show cause, with a stay of all other proceedings on the part of the plaintiff meanwhile. In opposition the plaintiff presents an order allowing her to continue the action in forma pauperis, obtained ex parte since the said order to file security or show cause was granted.
Hugo Hirsh for motion.
G. S. Carpenter opposed.
An order to prosecute in forma pauperis cannot be obtained ex parte after the action is begun (1 Paige, 39; 6 Hill, 257 ; 14 How. Pr., 16 ). It might be inferred from the report of the decision in Shearman v. Pope ( 106 N. Y. 664 ) that the order was obtained on notice, but reference to the record shows that not to have been so. The court either overlooked this, or else the ex parte.order was deemed valid until vacated.
Let the ex parte order be vacated, and the time to give security be postponed for ten days.
Ordered accordingly.
Cases cited
- Shearman v. Pope 106 N. Y. 664 p. 52