
    Tobias, an Infant, by Guardian ad litem, App’lt, v. The Broadway & Seventh Avenue R. R. Co., Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed May 8, 1891.)
    
    Infants—Right to sub as a poor person.
    Section 458 oí the Code Civ. Pro., which provides that “apoor person, not being of ability to sue, * * * may apply, by petition, to the court * * * for leave to prosecute as a poor person * * *" applies to infants as well as adults.
    
      Appeal from order of special term requiring plaintiff to give security for costs.
    
      Love & Rott, for app’lt; Root & Clarke, for resp’t.
   McCarthy, J.

—The question is, has the infant plaintiff now the right to sue as a poor person, although the guardian ad litem, when applying for appointment as such, swore he was worth $250 ?'

I think the right of the infant plaintiff to sue as a poor person is a substantial right, and one that does not depend upon the responsibility of the guardian. Section 458, Code of Civil Procedure, declares that a poor person, not being of ability to sue * * * may apply by petition. Section 459 states what is required to be set forth in the petition, and § 460 declares that the court, if satisfied of the truth of the facts alleged in last section, may by order admit him to prosecute as a poor person. See, also, § 468.

This certainly is not confined to adults, but means infants as well. The law cannot and it never was the intention of the legislature to depiive an infant who was poor from prosecuting a good cause of action, for the court only grants the order on condition that the court is satisfied that the infant plaintiff has a good cause. Ror for the same reason can it be contended that unless security for costs is furnished by infant plaintiff suing as a poor person, he cannot proceed.

Section 469, which says that the guardian shall be responsible for costs, and § 3268, which says: “The defendant * * * may require security for costs where the plaintiff - was * * * an infant whose guardian ad litem, has not given such security,” means in a proper case. For the provisions must be qualified and limited by § 458, which gives the infant plaintiff the right to sue as a poor person,” and § 468 declares: “ Where an infant has a right of action he is entitled to maintain an action thereon, and the same shall not be deferred or delayed on account of his in7 fancy.” Sections 458 and 468 of Code of Civil Procedure are as mandatory and peremptory as § 3268.

In determining the question, however, we must take the act in general and endeavor to reach the intent and purpose of the legislature.

The court have, with the exception of one or two cases, adopted this view, for they have allowed the infant plaintiff against the demand of the defendant for security for costs, to prosecute as a poor person, even where a poor and irresponsible person was guardian. It could only be upon and for the reason that when the infant plaintiff complied with §§ 458, 459 and 460, he was entitled to the order.

If the plaintiff, being a poor person, has the right to sue when he has a good cause of action, and shall not be deferred or delayed from maintaining same on account of such infancy, see § 468, and that the fact of such suing as a poor person shall relieve him from liability for costs, see § 461, how can the guardian ad litem, who after all is but the representative of the infant plaintiff as well as an officer of the court, become liable for costs or be required to give security in such case.

It is the infant plaintiff against whom or for whom the judgment is entered, and the guardian is only personally liable to the extent of the costs in a proper case. Section 458, applying to this special class of cases, limits. See §§ 3268 and 468. See Hotaling, Jr., an Infant, v. McKenzie, 7 N. Y. Civ. Pro., 321, 322, 323 ; Nichols v. Cammann, 2 id., 375, 377 ; Irving, an Infant, v. Garrity, 4 id., 105, 107, 108 ; City Court, 5 N. Y. State Rep., 913.

It is true that in many of the cases decided it appeared that the guardian was poor and irresponsible. But this in my opinion ■only proves the correctness of the foregoing.

That it is not a condition in order to entitle infant plaintiff to maintain cause of action as a poor person that he should give security for costs or that the guardian ad litem should be a person of means.

The provisions of the Code of Civil Procedure are broad enough to permit an infant to sue in forma pauperis. See Erickson v. Poey, Court of Appeals, 5 Civ. Pro., 379; 7 id., 321, 322, 323 ; Hayes, an infant, v. Second Avenue R. R. Co., 5 id., 155.

The plaintiff was in time in making his application. Shearman by guardian v. Pope 106 N. Y., 665 ; 8 N. Y. State Rep., 710.

The order should be reversed and the infant plaintiff allowed to sue as a poor person.

Fitzsimohs, J., concurs.  