Nanny Alexander, Plaintiff, against Joseph Meyers and Solomon Marcus, Defendants

Nanny Alexander, Plaintiff, against Joseph Meyers and Solomon Marcus, Defendants. [Special Term.] (Decided August 23d, 1878.) Whether or not a plaintiff should be allowed to prosecute in forma pauperis is discretionary with the court. Leave to so prosecute will be denied where the action is upon a tort committed in another State, of which both plaintiff and defendant are residents, and there is unreasonable delay in presenting the application. Motion for leave to prosecute in forma pauperis, and to vacate an order requiring plaintiff to file security for costs or to show cause, &c., and staying plaintiff’s proceedings. The facts appear in the opinion. David Levy, for the motion. Armstrong Sf Briggs, opposed. [MAJORITY — Joseph F. Daly, J.] Joseph F. Daly, J. Defendant having procured an order requiring plaintiff to show cause why she should not file security for costs, being a non-resident of this State, she now makes a counter-application to be allowed to sue in forma pauperis (Code, sec. 458, &c.). The prayer of plaintiff’s petition should be denied for the reasons:— First: The cause of action is for wrongful conversion of plaintiff’s goods at Augusta, Georgia, in the year 1875, in which place both defendants'and plaintiff reside ; the action was commenced in 1877 in this city. I deem it contrary to the policy of the law to encourage, by such an order as is here asked for, the bringing of actions in this State for torts committed in another State, where plaintiff and defendants are residents of such other State, and were so when the wrong complained of was committed. It has been doubted whether such an order can be made in favor of a non-resident plaintiff (Thomas v. Wilson, 6 Hill, 257.—Per Bronson, J.). If a person complaining of an injury inflicted in the country where such person and the wrong-doer then and still reside choose to prosecute in a foreign tribunal, it should be under the usual liability for costs. Second: The action was commenced in September, 1877 ; issue has been joined, and the application should be denied on the ground of delay in making it, under the decision in Florence v. Bulkley (1 Duer, 705.—Bosworth, J.). It is discretionary with the court, in all cases, to make an order allowing a party to sue in forma pauperis (Graham’s Pr. 916). Application denied, with $10 costs.