
    Elizabeth Gallagher, an Infant, by Michael Gallagher, Guardian ad Litem, Plaintiff, v. The Geneva, Waterloo, Seneca Falls & Cayuga Lake Traction Co., Defendant.
    (Supreme Court, Monroe Special Term,
    January, 1903.)
    Costs — Infant suing as a poor person.
    An infant, not being of ability to sue, who alleges that she has a cause of action against the defendant, may be permitted by an order of the court to prosecute as a poor person and the mere fact that her father and guardian ad litem is a responsible person affords no reason why the court should vacate the said order and require her to give security for costs.
    Motion to vacate an ex parte order permitting an infant plaintiff to prosecute this action as a poor person.
    Charles A. Hawley, for motion.
    W. Smith O’Brien, opposed.
   Davy, J.

This is a motion to vacate an ex parte order permitting the infant plaintiff to prosecute this action as a poor person and for an order requiring security, for costs to be given by the plaintiff pursuant to section 3268 of the Code of Civil Procedure.

The defendant contends that because the guardian ad litem-is the father of the plaintiff and is a responsible person to act as guardian, the plaintiff should not be permitted to prosecute as a poor person.

I am inclined to think that the mere fact that the father is able to give security for costs has nothing to do with the rights of the infant plaintiff. She sets forth in her complaint a good cause of action and if she is successful the recovery inures to her benefit and not to the father, who, for that reason alone might refuse to give security for costs and thereby deprive the infant of the right to prosecute her action for damages.

It is the poverty of the infant plaintiff and not of the guardian ad litem that confers jurisdiction upon the court to permit her to prosecute the action as a poor person.

The law contemplates that all persons who are residents of this State shall have access to the courts for the trial of actions without being required to give security for costs.

The court has power, even when an appeal is taken by a person acting in another’s right, to dispense with security for costs.

It seems to me that the order dispensing with security for costs was a proper exercise of discretion by the learned justice who granted it.

The motion, therefore, is denied, with $10 costs.

Motion denied, with $10 costs.  