McGillicuddy v. Kings County El. Ry. Co. — 30 N.Y.S. 833

Majority

p. 833

(10 Misc. Rep. 21.)

McGILLICUDDY v. KINGS COUNTY EL. RY. CO.

(City Court of Brooklyn, General Term.

October 22, 1894.)

Headnote

Costs—Action in Forma Pauperis—Petition.

A petition for leave to sue as a poor person, which refers to the complaint, states “the nature of the action,” as required, by Code Civ. Proc. § 459.

Appeal from special term.

Action by Ellen McGillicuddy, an infant, by her guardian ad litem, against the Kings County Elevated Railway Company. From an order denying plaintiff’s motion for leave to sue as a poor person, and granting defendant’s motion to require plaintiff to give security for costs, plaintiff appeals. Reversed.

Argued before CLEMENT, C. J. and VAN WYCK, J.

Louis J. Grant, for appellant.

Hirsh & Rasquin, for respondent.

The complaint in this case sets forth a cause of action against the defendant. There were no affidavits before the court tending to show that the action was not brought in good faith, and no denial of the allegations of the complaint On the papers used on the motion, we are satisfied that the plaintiff had a good cause of action, for the reason that no papers were read in opposition to the statements set forth in the complaint; and the complaint must, for the purposes of the motion, be taken as true. The complaint was referred to in the petition and notice of motion, and we therefore are of opinion that the petition did state the nature of the action.^[1] Order reversed, and motion granted, with §10 costs and disbursements.

1 Code Civ. Proc. § 459, provides that the petition for leave to sue as a poor person must state “the nature of the action brought or intended to bo brought.”