Majority
p. 1004(25 Misc. Rep. 52.) CONBOY v. AYRES. (Supreme Court, Special Term, Kings County. October, 1898.)
Headnote
Motions—Ex Parte—Right to Sue as a Poor Person.An order allowing plaintiff to prosecute as a pauper cannot be obtained ex parte after the action has been brought.
Action by Mary Oonboy, by guardian, against Philip Ayres.
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 paupeyis, obtained ex parte since the said order to file security or show cause was granted. Order vacated.
Hugo Hirsh, for the motion.
G-. S. Carpenter, opposed.
An order to prosecute in forma pauperis cannot be obtained ex parte after the action is begun. Isnard v. Cazeaux, 1 Paige, 39; Thomas v. Wilson, 6 Hill, 257 ; Ostrander v. Harper, 14 How. Prac. 16. > It might be inferred from the report of the decision in Shearman v. Pope, 106 N. Y. 664 , 12 N. E. 713 , 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 10 days.
Cases cited
- Shearman v. Pope 106 N. Y. 664 p. 1004