McGillicuddy v. Kings County Elevated Railway Co. — 62 N.Y. St. Rep. 648

Majority

p. 648

Ellen McGillicuddy, an Infant, etc., App’lt, v. The Kings County Elevated Railway Company, Resp’t.

(Brooklyn City Court, General Term,

Filed October, 1894.)

Headnote

1. Parties—Poor person.

Upon an application to sue as a poor person, the statements in the complaint must be taken as true for the purposes of the motion, where no papers in opposition thereto are presented.

p. 649

2. Same—Petition.

The petition, in such case, where it and the notice of motion refer to the complaint, sufficiently states the nature of the action.

Appeal from an order, denying a motion for leave to sue as a poor person.

Louis J. Grant, for app’lt; Hirsh & liasquin, for resp’t

The complaint in this case sets forth a cause of • action against the defendant. There was 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.

The order should be reversed and motion granted, with $10 costs and disbursements.

Present: Clement, Ch. J., and Van Wyck, J.

Order reversed and motion granted, with $10 costs and disbursements.