
    Rudy Sumkow, by Hyman Sumkow, her Guardian ad Litem, Respondent, v. Wolf Sheinker, Appellant.
    
      Order permitting a suit in forma pauperis — it should require the attorney to serve without compensation—not granted where the father and guardian ad litem is worth over $250. .
    An order permitting a plaintiff to sue in forma pauperis which does not provide that the attorney named, therein shall serve without compensation, as he is required to do by section 460 of the Code of Civil Procedure, is defective.
    An order permitting an action brought by the father of an infant as his guardian ad litem, to he prosecuted in forma pauperis should not be granted where the guardian ad litem averred in the petition for his appointment that he is worth over $250 and there is no proof that his financial circumstances have changed since his appointment.
    •Laughlin, J., dissented.
    Appeal by the defendant, Wolf Sheinker, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of December, 1902, vacating an order theretofore made in the above-entitled action, dated the 7th day of November, 1902, requiring security for costs and permitting the plaintiff to sue as a poor person.
    
      Isidor Cohn, for the appellant.
    
      Samuel Abramson, for the respondent.
   Patterson, J.:

This is an appeal from an order vacating an order which required the plaintiff to file security for costs, and permitting the prosecution of the action to be continued informa jpaujoens.

The order is defective, in that it does not comply with section 460 of the Code of Civil Procedure, as it omits to provide that the attorney named therein shall act without compensation. (Daus v. Nussberger, 25 App. Div. 185.) There is another objection to the maintenance of this order. The guardian ad litem, is the father of the infant plaintiff. When he was appointed he swore that he was worth the sum of $250. There is nothing in this record to show that his circumstances have changed since his appointment as guardian ad litem / and, such being the case, the motion for leave to sue as a poor person should have been denied. (Rutkowsky v. Cohen, 74 App. Div. 415 ; Muller v. Bammann, 77 id. 212.)

The order should be reversed, with ten dollars costs and disburse-ments, and the motion for leave to sue in forma pauperis denied, with ten dollars costs, and the order requiring security for costs reinstated.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I dissent upon the ground that the responsibility of the guardian ad litem does not affect the right of the infant to prosecute the action in forma pauperis. (Code Civ. Proc. §§ 458, 459; Feier v. Third Ave. R. R. Co., 9 App. Div. 607.)

Order reversed, with ten 'dollars costs and disbursements, and motion denied, with ten dollars costs; and order requiring security reinstated.'  