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Sumkow v. Sheinker

82 N.Y.S. 995 Court N.Y. App. Div. Decision date 1903-06-19 English

Decision Majority — PATTERSON, J. · Dissent — LAUGHLIN, J.

Contents
p. 995
SUMKOW v. SHEINKER.
(Supreme Court, Appellate Division, First Department.
June 19, 1903.)

Headnote

t Action as Poor Person—Attorney—Compensation—Order.
Code Civ. Proc. § 460, provides that the court may permit plaintiff to prosecute in forma pauperis, and assign to him an attorney, who must act without compensation. Held, that an order permitting the prosecution of an action in forma pauperis which omits to provide that the attorney must act without compensation is defective.
S. Same—Guardian Ad Litem.
Where, in an action by an infant, by her father, as guardian ad litem, he swore on his appointment that he was worth $250, and, on a motion by him for leave to sue in forma pauperis, it does not appear that his circumstances have changed, the motion should be denied.
Laughlin, J., dissenting.
Appeal from Special Term, New York County.
Action by Rudy Sumkow, by Hyman Sumkow, her guardian^ ad litem, against Wolf Sheinker. From an order granting plaintiff’s motion for leave to sue as a poor person, defendant appeals.
Reversed
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.
Isidor Cohn, for appellant.
Samuel Abramson, for respondent.

This is an appeal from an order vacating am order which required the plaintiff to file security for costs, and permitting the prosecution of the action to be continued in forma pauperis.

The order is defective, in that it does not comply with section 460 ■ of the Code of Civil Procedure, as it omits to provide that the attorney named therein shall act without compensation. Daus v. Nussberger, 25 App. Div. 185 , 49 N. Y. Supp. 291 .

There is another objection to the maintenance of this order. The guardian ad litem is the father of the infant plaintiff. When he was appointed he swore that he was worth the sum of $250. There is nothing in this record to show that his circumstances have changed since his appointment as guardian ad litem, and, such being the case,, the motion for leave to sue as a poor person should have been denied. Rutkowsky v. Cohen, 74 App. Div. 415 , 77 N. Y. Supp. 546 ; Muller v. Bammann, 77 App. Div. 212 , 78 N. Y. Supp. 1022 .

The order should be reversed, with $10 costs and disbursements,, and the motion for leave to sue in forma pauperis denied, with $10-costs, and the order requiring security for costs reinstated. All concur, except LAUGHLIN, J., who dissents.

I dissent upon the ground that the responsibility of the guardian ad litem does not affect the right of the infant to prosecute the action in forma pauperis. Code Civ. Proc. §§ 458, 459; Feier v. Third Ave. R. Co., 9 App. Div. 607 , 41 N. Y. Supp. 821 .

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