Majority
p. 664William B. Shearman, by Guardian, etc., Respondent, v. Charles D. Pope, Appellant. (Argued June 21, 1887 ; decided July 1, 1887.
Headnote
Where, after an order requiring an infant plaintiff to file security for costs and staying proceedings until the order was complied with, and pending a motion to dismiss the complaint because of a failure to comply with the order, the court granted an order allowing plaintiff to prosecute the action as a poor person. Held, that the stay did not deprive the court of jurisdiction to make the second order; and that such order was an answer to the motion to dismiss.
p. 665The following is the mem. of opinion : “ The order should be affirmed, with costs.”
This was an appeal from an order of General Term affirming an order of Special Term, which denied a motion on the part of the plaintiff to dismiss the complaint.
Defendant procured and served an order requiring plaintiff to file security for costs within ten days after service of the order, and staying proceedings until the order was complied with. Plaintiff having failed to comply with the order, defendant moved for a dismissal of the complaint. Pending the motion plaintiff procured an order allowing him to prosecute the action in forma pauperis / on production of this order the court denied the motion to dismiss.
“ Per Curiam. The same court which required the plaintiff to give security for costs subsequently made an order allowing the plaintiff to prosecute this action as a poor person. The stay of proceedings granted when the first order was made did not deprive the court of jurisdiction to make the second order, and that order was an answer to the motion to dismiss the complaint.
John K. Kuhn for appellant.
F. J. Moissen for respondent.
mem. for affirmance.
All concur.
Judgment affirmed.