IRVING v. GARRITY

IRVING v. GARRITY. N. Y. Supreme Court, Second District, Second Department; Special Term, 1883. Motion for Leave to Sue as a Poor Person.—Infant Plaintiff. Under the provisions of the Code of Civil Procedure, an infant may be permitted to sue as a poor person notwithstanding section 3868 of the Code, which provides that infant plaintiffs shall give security for costs. Infants are favored by the courts. Motion to vacate order of special term directing security for costs to be given, and for leave to sue in forma pauperis. This motion was made in an action brought to recover damages for injuries sustained by the plaintiff, a child eleven years of age, through the negligence of defendants in placing a stone slab in a dangerous position on the public sidewalk. On motion of defendants’ attorney, an order was granted at special term on July 14, 1883, requiring the plaintiff to deposit $250, or file an undertaking, as security for costs. This motion was made by Robert Irving as guardian ad litem of Mary G. Irving, an infant, to vacate that order, and for leave to continue the suit as a poor person. The motion was based on a petition which, among other things, alleged that he was the father of the plaintiff ; that he was a street car conductor by occupation, poor, and not worth $100, and had a large family dependent upon him for support; that the infant plaintiff was also poor, and without property ; that petitioner had used his best endeavors to obtain sureties to go on an undertaking for costs, and had failed; and that unless this action was allowed to be continued by plaintiff in forma pauperis, the action could not be continued, and the right of the plaintiff to redress her wrongs would be defeated, and great injustice done her. To the petition was annexed the ■ affidavit of one of the plaintiff’s attorneys to the effect that the plaintiff had a good and substantial cause of action. Morris & Pearsall, for the motion. I. By section 458 of the Code of Civil Procedure it is provided that “ a poor person, not being of ability to sue, who alleges that he has a cause of action against another person, may apply .... for leave to sue as a poor person.” Section 460 provides, that where the court is satisfied of the truth of the facts alleged, it may allow by order the applicant to prosecute the action as a poor person. Section 461 provides that if the application is granted, costs shall not be awarded against him. The code also provides (§ 468) that “ When an infant has a right-of action, he is entitled to maintain an action thereon.” It must be prosecuted, however, through a guardian ad litem (Code, § 469). By those provisions our legislature has given to infants the same rights in our courts to prosecute their claims, and redress their wrongs, as is given to adults. When an infant is poor, and is, for that reason unable to prosecute a good cause of action, he falls clearly within the provisions of sections 458 and 460 of the Code. He has a right to apply for the relief therein provided for, and the court is vested with the power to grant it. II. It is true that section 8268 of the Code provides that the defendant may require security for costs where the plaintiff “is an infant whose guardian ad litem has not given such security.” All the provisions above referred to are parts and parcels of the same general law. In order, therefore, to carry out the intention of the legislature and further the ends of justice, those provisions should be construed together. Now, the legislature clearly intended that the doors of justice should not be closed against any person because of his infancy or poverty. The law recognises and provides for those misfortunes. The application, therefore, of section 3268 is limited and qualified by sections 458, 460, 468 and 469. It should be construed in connection with those other provisions. Otherwise the beneficent provisions of sections 458 and 468 will be practically defeated in a very great measure. III. It will be observed, that the language used, in section 458 is as clear and positive as that in section 3268. It applies, not only to adult litigants, but to every man, woman and minor who, by reason of poverty, is unable to prosecute a good cause of action. Had our legislature intended that the provisions of section 458 of the Code should not apply to poor infants, and should apply solely to adult paupers, it would certainly have declared so in express terms. Such a narrow interpretation of the provisions referred to would be against reason, and the spirit of our law. IY. It may be argued, that the court having already directed security for costs to be given, it is now too late to apply for the relief provided for in sections 458 and 460. It will be seen, however, that no particular time is mentioned in the Code within which the application shall be made. The Code says that it may be made to the court “in which the action is pending P, Prom that it would seem that the application may be made at any time during the pendency of the action. Certainly the plea of poverty could not be set up in opposition to the defendants’ motion for security for costs. That plea can only be properly brought before the court in a direct application for leave to prosecute in forma pauperis. James J. Rogers, for defendants, opposed. In Lewis v. Lewis, N. Y. Com. Pl., Sp. T., March, 1883, the court, under Code Civ. Pro. § 3371, ordered a plaintiff suing an executrix to furnish security for costs, where it appeared that he was pecuniarily irresponsible and that an execution against his property bad recently been returned unsatisfied. The moving papers alleged that the action was brought against the defendant in her representative capacity of executrix, and was at ;sue and awaiting trial upon the general calendar ; that defendant had good defenses to the causes of action alleged in the complaint, specifically stating them, and that the action had not been brought in good faith, but simply for the purpose of annoying the said executrix and extorting money to discontinue the suits and allow her to obtain a final settlement of her accounts. It was further alleged that file plaintiff was insolvent and pecuniarily irresponsible; that a judgment for §134 had been recovered in this court against him in 1878, !-y another person, and was unsatisfied of record, execution thereon laving been returned unsatisfied and supplementary proceedings having failed to result in the discovery of any property. Albert W. Van Winkle, for motion, cited Code Civ. Pro. § 3271; Murphy v. Travers, 60 How. Pr. 301; aff’d, 23 Hun, 666 ; Gedney v. Purdy, 47 N. Y. 676; Raney v. Stringer, 4 Bosw. 663; Fish v. Wing, 1 Civ. Pro. R. (MaC.) 233. Sidney S. Stuart, opposed. VanHoesen, J. (without opinion), made the usual order for security for costs. Defendant, subsequently, on an affidavit reciting the former proceedings; and plaintiff’s neglect to comply with the order for security for costs, although seven months had elapsed, moved at special term, on notice, for judgment dismissing the complaint. Albert W. VanWinkle, for motion.—Defendant is entitled to a dismissal of the complaint upon plaintifi’s failure to give security (Hinds v. Douglass, 19 Abb. Pr. 11; Freeman v. Young, 3 Robt. 666; Cadwell v. Manning, 15 Abb. Pr. 271; Code Civ. Pro. § 3277). The stay of plaintiff's proceedings resulting from his failure to pay costs of the former motion although continuing for seven months is no defense to this application (James v. Shea, 15 Weekly Dig. 359 ; 28 Hun, 74.) Sidney H. Stuart, opposed. Beach, J.—Motion granted with ten dollars costs upon authority of section 3277 of the Code of Civil Procedure. Judgment was subsequently entered dismissing the complaint with costs. [MAJORITY — Barnard, J.] Barnard, J. The Code is broad enough to permit an infant to sue informa pauperis in courts. It provides for any poor person. The spirit of the law would necessarily include minors ; for why leave them out ? The object was to enable all conditions to obtain justice. Infants are generally favored in this regard. The guardian ad litem is himself poor and unable to pay costs. The case seems to be one where the order should be granted.