Berkman v. Wolf

Patterson, J.: This is an appeal from an order vacating an order requiring the infant plaintiff to file security for costs and allowing him to continue as a poor person an action brought to recover damages for personal injuries. The summons and complaint were served on the 23d of April, 1901. On the tenth of May the defendant served upon the plaintiff’s attorney an order requiring the filing of security for costs in the sum of $250. On the third of June the plaintiff procured an order"to show ca'use why the order requiring security [80] for costs should not be set aside and the plaintiff allowed to con-, tiuue the action in forma paxoperis. That order to show cause was based upon a petition which, after setting forth the nature of the cause of action, stated that the petitioner was a poor person and was not worth the sum of $100, besides the wearing apparel and furniture necessary for himself and family, and the subject-matter of this action of which he is not in possession, and that he has no rich relatives or friends who have left money for him in trust or otherwise, and that he has made diligent efforts to secure an undertaking, but has been una,ble to do so; and unless the motion be granted vacating the order requiring him to furnish security for costs and permitting him to continue the action im, forma pcmperis, he will be unable to proceed with this action. This plaintiff was an infant over the age of fourteen years, to wit, of the age of fifteen years, and resides with his guardian ad litem in the city of New York. He also asks in his petition that an attorney be assigned him, and annexed to the petition is the certificate of an attorney to the. effect that in his opinion the plaintiff has a good and meritorious action against the defendant, and agreeing to act for the plaintiff without compensation and that no charge or claim for counsel fees will be made, except such as would be awarded by the court. In the petition it is also stated that the order to show cause was asked for because the petitioner desired ten days additional time to furnish an undertaking in the event of the motion being denied or dismissed. On the return of the order to show cause the motion was heard and granted. The order appealed from should not have been granted. The application comes within what was decided in Weinstein v. Frank (56 App. Div. 275), where we held that it was not sufficient to show that a person does not own $100 in property to enable him to sue m forma pauperis, but that he must show that he is so situated that he would be unable to present his case to the court unless permission so to sue were given. This petitioner does not show that he cannot furnish security for costs. He merely states that he will be unable to prosecute his action unless he is allowed to sue in forma pauperis, and yet at the same time he says that if his motion is denied he “ desires ten days additional time ” in which to furnish security for costs. [81] The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied. Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied.