PARKINSON v. SCOTT

PARKINSON v. SCOTT. N. Y. Superior Court, Special Term; October, 1893. -Costs; in discretion of court ] Plaintiff though suing as a poor person may be required to pay costs for proceedings before and after notice of trial as a condition of allowing him to discontinue after defendant has answered and served a notice of trial. Motion to discontinue an action without costs. Action by James H. Parkinson, an infant, by James E. Parkinson, his guardian, against John Scott for personal injuries. The further facts are fully stated in the opinion. H. M. Requa,Jr., for the motion. Jared F. Harrison, opposed. The power to allow a poor person to sue in forma pauperis which originated in chancery, where the question always depended •on the discretion of the court, was long since conferred on common law courts of general jurisdiction in New York. A modified form of the same privilege has recently been adopted by Act of Congress for the Federal courts. Under 25 U, S. Stat. at Large, p. 252 (1892) c. 209, any United States citizen entitled to sue may prosecute his suit or action without prepaying any fees or costs before or after the commencement of the action, or giving security therefor, upon filing an affidavit that because of poverty he is unable to pay costs, and believes himself entitled to relief. Officers of the court are required to perform their duties and witnesses to attend as in other cases, and the court may request an attorney to represent such poor person. But the court may dismiss a cause so brought if it appears that the allegation of poverty is untrue or the alleged cause of action is frivolous or malicious. A judgment for costs may be rendered as in other case's, provided that the United States shall not be liable-for the costs thus incurred.- [MAJORITY — Gildersleeve, J.] Gildersleeve, J. The plaintiff served the summons,, complaint and notice of motion for leave .to sue as a poor person, on the defendant, John Scott, on August 22, 1893 ; on August 28, 1893, the defendant served his answer and notice of trial; and on August 31, 1893, the motion for leave to sue as a poor person was argued and granted, and an order entered thereon. Subsequently the plaintiff became convinced that he had sued the wrong person, and he now moves for leave to discontinue, without costs. The defendant has been put to the trouble and expense of answering, of serving notice of trial, and of opposing the-motion for leave to sue as a poor person. I am of the opinion that the defendant should have-$25, the statutory costs before and after notice of trial, as a condition of granting the order of discontinuance. I do not think the entry of the order granting leave to sue as a poor person deprives the court of authority to impose costs as a condition for discontinuing the action, in a case like this. The Code (§ 461) provides that, in the case of one suing as a poor person, “if judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him.” But in this case an innocent party has been sued and put to trouble and expense, through the blunder of the plaintiff, and I do not think the above statute applies to a motion made by the plaintiff to be allowed to discontinue without costs. It has been held that costs, in a case where the. plaintiff sues as a poor person, can be imposed as a condition for opening plaintiff’s •default (See Elwin v. Routh, 1 Civ. Pro. R. 131; Neugrosche v. R. R. Co., 1 State Rep. 302); and I think the same principle can be extended to a case like the one at bar. Motion is granted, on payment of $25 costs.