
    Augusta Feier, an Infant, by Harry Levy, her Guardian ad Litem, Appellant, v. The Third Avenue Railroad Company, Respondent.
    
      Poor person—an infant over fourteen may sue in forma pauperis aliJiough Tier gum'dian ad litem is a responsible person— Oode of Civil Procedure, §§ 458,459.
    "Where the petition of an infant over fourteen years of age, asking leave to sue as a poor person, strictly' complies with the requirements of sections 458 and 459 of the Code of Civil Procedure, and is verified by a guardian ad litem, the application should not be denied merely because it appears from .the moving papers that the guardian ad litem, is a responsible person.
    Appeal by the plaintiff, Augusta Feier, an infant, by Harry Levy, her guardian ad litem,, from an order of the Supreme" Court,' made at the New York Special Term and entered in the office óf the clerk of the county of New York on the 16th day of April, 1896, denying her motion for leave to sue as a poor person.
    . The petition upon which the application was made was as follows: “ I. That she is an infant over the age of fourteen years, to wit, nineteen years of age.
    
      “ II. That she appears by Harry Levy, her guardian ad litem herein.
    “ III. That the parents of your petitioner reside in Europe, and that your petitioner is employed as a domestic by the said Harry Levy, her guardian ad litem, and that he is not related to her.
    “ IV. That this action was commenced on or about the 21th day of February, 1896, by the service of a summons on the defendant. That thereafter the said defendant appeared herein by Messrs. Hoadly, Lauterbacli & Johnson, its attorneys, and the complaint herein was served on said defendant’s attorneys on or about March 10, 1896, and defendant’s answer was served on the plaintiff’s attorneys on or about March 20, 1896. The said action was brought by your petitioner to recover the sum of $5,000, because of the in juries received by the plaintiff by reason of the negligence of the defendant and his servants, said negligence consisting in the defendant’s careless and negligent management of one of its cars, thereby causing this plaintiff to sustain severe injuries, and perhaps permanently incapacitate her, and that said injuries were caused without any negligence on the part of this plaintiff.
    “ V.' That the plaintiff is nineteen years of age, and is not worth the sum of $100, besides wearing apparel, and the Subject-matter of this action ; that, in fact, yóur petitioner has no means whatever.
    “ VI. That your petitioner is informed by her counsel, Messrs. Wahle & Stone, and verily believes, that a motion has been made herein to compel your petitioner’s guardian ad litem to file security for costs, and said motion is returnable in this court on or about the 14th day of April, 1896.
    “VII. That your petitioner’s guardian, Harry Levy, is in the cigar business, and, as already stated, is not related to her, and while deponent believes that he is .a competent person and has the best interest of your petitioner at heart, your petitioner sees no method of compensating him, in the event that she should not succeed in this action; and in view of the fact that she works for the said Harry Levy as a domestic at a salary of $15 per month, your petitioner, will be. unable - to furnish the security demanded, and will be unable to conduct this action if any bond is required from her guardian, in accordance with the motion which has been made herein.”
    
      Charles G. F. Wahle, for the appellant.
    
      Frank H+. Knight, the respondent.
   Barrett, J.:

The plaintiff’s papers are in strict accordance with the provisions of sections 458 and 459 of the Code.of Civil Procedure. She could say no more to invoke judicial action than she has said in these papers. No more could well be said.

The defendant filed no affidavits in opposition. If, therefore, her motion was properly denied, it is difficult to conceive of a case where an infant pauper may avail herself of the law which was expressly enacted for the benefit of her class. Prior to the amendment of 1891 there was a conflict of judicial opinion with regard to the right of infant paupers to sue as poor persons. In some cases it was held that where an infant sues by guardian ad litem, security for costs being a statutory right, the court had no power to destroy it by allowing the guardian to sue as a poor person. These cases were subsequently overruled. But it was to settle these and all other questions upon the subject, that the amendment of 1891 was enacted. -That amendment consisted of the insertion in section. 458 of the words “ whether an adult or infant,” and of the provision in section 459, that where the applicant is an infant under the age of fourteen, years, the petition must be verified by his gua/rdian appointed im, the action.

Now, as an infant, whether under or over fourteen years of age, cannot apply until a guardian ad litem is appointed (Matter of Byrne, 1 Edw. Ch. 41; Glasberg v. Dry Dock, E. B. & B. R. R. Co., 12 Civ. Proc. Rep. 50, per Patterson, J.), and as such guardian ad litem must, under the General Rides of Practice, be a competent and responsible person, the statute is practically abrogated if the competency and responsibility of the guardian constitute a complete answer to the application.

The infant here says, without a word of denial, that she has no means whatever; that she has a good cause of action against the defendant; and that she is a hired domestic in her guardian’s service. What was the court’s answer It was this — though you are an infant pauper you shall not have the benefit of the statute becáuse you have a responsible guardian. This responsible guardian you had to secure before you commenced your action. Having secured him you are no longer within the statute, or rather it is no abuse of discretion to deny your petition. This reasoning seems to be practically to nullify the amendment and to leave infant paupers .in quite as unfortunate a position as they were in before the Legislature sought to help them.

The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion for leave to sue in forma pauperis granted.

Williams and Patterson, JJ., concurred; Van Brunt, P. J., and Rumsey, J., dissented.

Rumsey, J. (dissenting) :

Motions of this kind are addressed entirely to the discretion of the court, and they are not to be granted unless a state of affairs is shown to exist in which justice requires it. They are not to be; encouraged. A person asking for them seeks to get a privilege and exemption from the common rule, and unless good reason is shown why he should have it, his application should be denied. (Moore v. Cooley, 2 Hill, 412; Isnard v. Cazeaux, 1 Paige, 39.) . One is authorized to prosecute as a poor person to avoid a failure of justice, because he makes it appear to the court that if he were not so authorized.he would be unable to maintain his action. Nothing of that sort has been made to appear here. . The plaintiff’s papers show that she has already commenced the action, and that she has procured a competent person, responsible for costs, to act as her guardian ad litem.. There is no danger of any failure of justice because of a denial of this motion. The guardian having accepted his trust, will be compelled to perform it.

The court properly exercised its discretion in denying the motion, and the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurred.

Order. reversed, with ten dollars. costs and disbursements, and motion granted.  