
    William Kerrigan, Jr., an Infant, by his Guardian ad Litem, Respondent, v. Lewis G. Langstaff, Appellant.
    
      Petition for leave to sue in forma pauperis by an infant under fourteen—it must be verified by a guardian ad litem actually appointed.
    
    A petition for an order granting an infant under the age of fourteen years permission to sue as a poor person must, under section 459 of the Code of Civil Procedure, be verified by the affidavit of “his guardian appointed in said action,” and cannot properly be verified by a person who states that he is willing to become the guardian ad litem of the infant.
    Appeal by the defendant, Lewis G. Langstaff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of March, 1901, denying the defendant’s motion to set aside an order bearing date the 23d day of February, 1901, and entered in said clerk’s office, in so far as it granted leave to the plaintiff to prosecute as a poor person.
    
      William D. Gaillard, for the appellant.
    
      Robert Stewart, for the respondent.
   Sewell, J.:

The plaintiff is an infant under the age of fourteen years, and the application and petition were made by William Kerrigan, his father. The petition sets forth the age of the infant, and on information and belief the cause of the action intended to be brought; that the petitioner is desirous that an action be brought for the benefit and on behalf of the infant to recover damages for personal injuries from negligence; that the petitioner is willing to become guardian ad litem of said infant and financially' responsible; that petitioner desires to commence an action in behalf of the infant, when appointed guardian ad litem for that purpose, but cannot do so unless said infant be permitted to sue as a poor person.” It also states that the infant has no property of any kind, and asks “ that he (the petitioner) may be appointed guardian ad litem for said infant to prosecute said action and that leave be granted to said infant to sue as a poor person, and that the court assign to him an attorney and counsel for that purpose.” Upon the petition, verified by the father on February 21, 1901, supported by a certificate of a counselor at law, to the effect that he had examined the case and was of opinion that the infant had a good cause of action, the court to which it was presented on February twenty-third made an order appointing William Kerrigan,' the petitioner, guardian ad litem of the infant, and further “ ordered that the said infant William Kerrigan, Jr., be and he hereby is granted leave to bring, through said guardian ad litem, the said action mentioned in the annexed petition, as a poor person, and Robert Stewart, attorney and counselor at law, is hereby appointed his attorney and counsel for that purpose.”

Section 458 of the Code of Civil Procedure, under which the application was made, provides that “ A poor person, whether an adult or infant, not being of ability to sue, who alleges that he has a cause of action against another person, may apply by petition to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person.” Section 459 provides that the petition “ must be verified by the applicant’s affidavit, unless the applicant is an infant under the age of fourteen years, and in that ease by the affidavit of his guardian appointed in said action.”

It is plain from these provisions that only the “' poor person ” has the legal right to move the court for such an order unless he is an infant, and in that case no one can apply in his behalf until his guardian ad litem lias been appointed. The statute is also explicit that it is the guardian ad litem appointed in the action, arid not the person to be appointed such guardian, who must verify the petition by his affidavit, in case the infant is under the age of fourteen years. (Matter of Byrne, 1 Edw. Ch. 41; Glasberg v. Dry Dock, etc., R. R. Co., 12 Civ. Proc. Rep. 50; Feier v. Third Avenue R. R. Co., 9 App. Div. 607.)

If the Legislature had intended that the petition should be verified before the appointment of a guardian, ór by-a person other than, the one actually appointed such guardian, it is to1 be presumed that it would have so provided in definite and certain language. It' certainly would not have provided that it “ must be verified * * by the affidavit of his guardian appointed in said action. • 1

It follows that the petition upon which the order permitting the plaintiff to prosecute as a poor person was not sufficient to justify the court in making the order; that the order appealed from should be reversed and the order for leave to prosecute in forma, pauperis vacated and set aside, without costs.

Goodrich, P. J., Woodward, Hirschberg and Jenks, JJ., concurred.

Order reversed and motion granted, without costs.  