McNamara v. Nolan — 32 N.Y.S. 922

Majority

p. 922

(11 Misc. Rep. 621.)

McNAMARA v. NOLAN.

(City Court of New York, General Term.

March 18, 1895.)

Headnote

Leave to Sue in Forma Pauperis—Meritorious Cause op Action.

Leave to sue as a poor person will not be denied on a showing by affidavit that plaintiff’s cause of action is not meritorious, as the issues in an action cannot be tried by affidavits. ■ ■

Appeal from special term.

Action by Patrick McNamara against John P. Nolan. From an order permitting plaintiff to continue the action in forma pauperis, defendant appeals. Affirmed.

Argued before EHRLICH, C. J., and NEWBURGER, J.

J. R. Tressider, for appellant.

J. J. K. O’Kennedy, for respondent.

This is an appeal from an order permitting the plaintiff to continue this action in forma pauperis. This action was brought on the 12th day of December, 1894; and on the 14th day of January, 1895, plaintiff applied for the order appealed from, on notice to defendant. The petition of the plaintiff clearly shows that he is not worth $100, and in all other respects complies with section 459 of the Code.

It is contended, however, by the defendant, that the action is not meritorious, and he submits, in support of his contention, a number of affidavits. It has been repeatedly held that issues in an action cannot be tried or disposed of by affidavits. Upon the face of the pleadings, a cause of action is set out; and, as plaintiff has complied with the requirements of the Code, the order appealed from must be affirmed, with costs.