Hyperlawhypertext legal database Joyce v. Cooper 49 N.Y. Super. Ct. 115

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Joyce v. Cooper

49 N.Y. Super. Ct. 115 17 Jones & S. 115 Court N.Y. Super. Ct. Decision date 1883-02-19 English

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p. 115
ELIZA JOYCE, Respondent, v. MARVEL W. COOPER, Appellant.

Headnote

Poor person—whan one not permitted to sue as sueh.—Attorney.
It is inconsistent with the letter and spirit of the Code to permit one to sue as a poor person who has parted with an interest in the claim upon which the action is brought, though the assignment thereof bo to her attorney as compensation for his services.
The order permitting a person so to sue must contain a provision assigning to the petitioner an attorney who must act without compensation. Such an order is within the discretion of the court.
Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
Decided February 19, 1883.
Appeal by defendant from order permitting plaintiff to sue, as a poor person, under Code of Civil Procedure, § 458 et seq.
The facts appear in the opinion.
Norwood & Coggeshall, for appellant.
Dill & Chandler, for respondent.

—It did not appear before the learned judge who granted the motion below, that the attorney who appeared for the plaintiff had an interest in the claim in action. This fact appeared by admission on the argument of the appeal. It is inconsistent with the spirit, and in some respects with the letter, of the provisions of the Code on this subject, to allow a plaintiff to sue as a poor person, when she has parted with an interest in the claim. Particulary section 460 may be noticed. That requires, as part of the order to be made, that it shall assign to the plaintiff an attorney and counsel to prosecute the action, who must act therein without compensation. The plaintiff’s attorney did not propose such an assigment in the order, nor was one made. If the plaintiff had in the nature of her cause of action a substantial value which might be parted with for a, consideration, or to compensate her attorneys, there is no

p. 116
reason why she should be exempted from responsibility for the costs and disbursements. Section 460 leaves the granting of such an order to the discretion of the court.

Order reversed, without costs.