
    Constantino Buccolo, by Theresa Buccolo, His Guardian ad Litem, Appellant, v. New York Life Insurance Company, Respondent.
    First Department,
    February 8, 1907.
    Practice —security for costs — prior order permitting plaintiff to sue as poor person.
    An order requiring a non-resident plaintiff to give security for costs should he vacated on motion where it is shown that an order permitting the plaintiff to sue as a poor person had been granted before the commencement of the action. The order permitting suit as a poor person can only be vacated upon a motion regularly made for that purpose, and is not invalidated by the failure of the plaintiff to serve a copy thereof upon the defendant.
    
      Appeal by 'the plaintiff, Constantino Buccolo, by Théresa Buceólo, his guardian ad- litem* from so much of an order of the Supreme Court, made at the Hew York Special Term and entered-in the office1 of the clerk of the county of Hew York on the 24th day of October, 1906, as denies the, plaintiff's'motion to Vacate an order entered in said clerk’s office on the 4th day of October, 1906, ■ requiring the plaintiff to give security for costs.
    
      Morris E- Gossett, for the appellant.
    
      Louis Cohnj for the respondent.
   Ingraham, J.:

“This action is brought to .recover for personal injuries alleged to have been sustained by the infant plaintiff by the negligence of the defendant. It was commenced by the service of a summons and complaint on the ’29th day of Jn-ly,. 1903, and issue was joined by the service of the defendant’s answer on the 11th of August, 1903. Immediately after the áct-ion was commenced the defendant endeavored to ascertain the residence of tlie plaintiff and his guardian, without success. The Case was then brought on for trial, .which resulted in a disagreement by the jury. On the trial it appeared that the plaintiff and also his guardian ad litem had, after the commencement of this action, left the. State of Hew York and then resided in Jersey City, in the State of Hew Jersey. Upon these facts an ex parte application was made for an order [requiring tlie plaintiff to give security for costs, which was. granted,'whereupon the plaintiff moved to vacate that order upon the ground that before the action was commenced an order had been entered allowing the plaintiff to sue as a poor person. This motion was denied and the plaintiff appealed.

Ho copy of the order allowing the plaintiff to sue as a poor person had been served .upon the defendant, but as long as that order remained in force-no costs could be awarded against the plaintiff, and, therefore, no order requiring the plaintiff to give security for costs was proper. The non-service of this order upon the defendant did. not invalidate it; and the ex parte Order requiring the plaintiff to give security for costs, upon the attention of,the court being called to the fact that there was an order in existence allowing the plaintiff-to sue as a poor person, should have been vacated. The order allowing the plaintiff to sue as a poor person-could only be vacated upon motion regularly made for that purpose. It could not be disregarded, and as long as it stood no order should have been granted requiring the plaintiff to give security for costs.

The order should, therefore, be .reversed, with ten dollars costs . and disbursements, and the order vacating the ex parte order requiring the plaintiff to give security for costs vacated, without prejudice, however, to a motion by the defendant to vacate the order allowing the plaintiff to sue as a poor person and, should that order be vacated, to apply for an order requiring-the plaintiff to give security for costs.

Patterson, P. J.j Laughlin, Clarke and Scott,'JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and order vacating ex parte order requiring plaintiff to give security for costs vacated, without prejudice to motion by defendant as stated in opinion. Settle order on notice.  