Bessie Rutkowsky, by her Guardian ad Litem, Simon Rutkowsky, Respondent, v. Abraham Cohen and Henry Lenzner, Appellants

Bessie Rutkowsky, by her Guardian ad Litem, Simon Rutkowsky, Respondent, v. Abraham Cohen and Henry Lenzner, Appellants. Suit in forma pauperis — the order must provide that the plaintiff’s attorney will act without compensation. An order allowing the plaintiff in an action to sue in forma pauperis is fatally defective, unless it contains a provision that the attorney for the plaintiff shall act without compepsation, as required by section 460 of the Code of Civil Procedure; the filing by the plaintiff’s attorney of a consent to prosecute the action without compensation is not sufficient. Appeal by the defendants, Abraham Cohen and another, from an order of the Supreme' Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17tli day of May, 1902, vacating and setting aside an order requiring the plaintiff to file security for costs, and allowing the. prosecution of the action informa pauperis. Edwin T. Taliaferro, for the appellants. Harry M. Marks, for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: The complaint in this action, which forms a part of the moving papers, states a cause of action against the defendants, and the. other papers in support of the application in form aré sufficient, except as hereinafter noted. At the time when the action was commenced the guardian for the infant plaintiff made affidavit that he was worth the sum of $250 over and above all his debts and liabilities, exclusive of property exempt by law from levy and sale under an execution. The guardian, therefore, established by this affidavit that he was worth a sum sufficient to have enabled him to comply with the order requiring security to be given for costs. In the guardian’s affidavit upon this application he nowhere states that he is not still possessed of this property, or but that he has the money which he might deposit. In this respect his statement is that he has inquired among friends, relatives and other persons, to procure an advance of the. money, or the execution of "an undertaking, as required by the order, and that he has been unable to procure either the money or the undertaking; but he does not say that he has not got the property or the money, unless it may be inferred from the statement that he knows of no other, source from which he can obtain the same. The affidavit of the guardian, in view of his former statement when he was appointed, should have shown that he was unable out of his own means to comply with the terms of the order requiring security. If there were no other defects in this proceeding it would be possible to infer from the statements made that such was the fact, although not stated in express terms. The order in the case, however, is defective. It fails to state that the attorney for the plaintiff will prosecute the action without compensation. A consent to so prosecute the action is filed by the attorneys, and appears in the moving papers; but this is not sufficient, as section 460 of the Code of Civil Procedure requires that the order contain such provision. (Daus v. Nussberger, 25 App. Div. 185.) For these reasons the order should be reversed, but without prejudice to the plaintiff’s renewal of the application. O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., concurred in the reversal, and are of opinion that the order should be reversed and the motion denied. Order reversed and motion denied, without prejudice to the plaintiff’s renewal of the application.