John Pankawicus, Respondent, v. Nichols Copper Company, Appellant

John Pankawicus, Respondent, v. Nichols Copper Company, Appellant. Second Department, October 15, 1915. Petition for leave to prosecute as poor person—sufficiency of order — effect of dismissal of complaint in prior action and non-payment of costs. An order for leave to prosecute as a poor person is defective where it does not assign to that person an attorney to prosecute the action without compensation, in compliance with section 460 of the Code of Civil Procedure. On a petition for leave to prosecute an action as a poor person, the fact that the complaint was dismissed in a prior action, with costs, which have not been paid, may be considered upon the question whether or not the petitioner has a good cause of action, but it is not a bar to a prosecution of the proposed action. ■ Appeal by the defendant, Nichols Copper Company, from an order of the County. Court of Queens. county, entered in the office of the clerk of said county on the 24th day of July, 1915, as resettled, by an order entered in said clerk’s office on the 27th day of July, 1915, denying its motion to vacate and set aside a former order permitting plaintiff to sue as a poor person. Frank L. Dolfini [Bertrand L. Pettigrew with him on the brief], for the appellant. H. G. McDowell [James F. O’Neill with him on the brief], for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: This order for leave to prosecute as a poor person is fatally defective because it does not assign to that person an attorney and counsel to prosecute the action without compensation, in accord with the provisions of section 460 of the Code of Civil Procedure. (Rutkowsky v. Cohen, 74 App. Div. 415; Sumkow v. Sheinker, 84 id. 463; Daus v. Nussberger, 25 id. 185.) The fact that in his previous action for the same cause the plaintiff was dismissed, with costs against him, which costs are unpaid, is not a bar to a prosecution of his proposed action (Code Civ. Proc. § 461), but such outcome of that action may properly be considered upon the essential question whether the petitioner has a good cause of action. (Id. § 460. See Young v. Nassau Electric R. R. Co., 34 App. Div. 126; Milliman Costs, § 267.) The order of the County Court of Queens county is reversed, without costs, and matter remitted to the County Court; but without prejudice to a renewal of the application. Carr, Stapleton, Mills and Putnam, JJ.,. concurred. Order of the County Court of Queens county reversed, without costs, and matter remitted to said court, but without prejudice to a renewal of the application.