
    Herman Kahn, Appellant, v. The Singer Manufacturing Co., Respondent.
    (City Court of New York, General Term,
    November, 1896.)
    I. Poor person—Leave to sue as.
    Where the complaint sets up a good cause of action and the truth of. the 'facts set up in. the 'petition, is not controverted,', the plaintiff is. entitled to have his motion for leave, to sue as a poor person granted as: matter of. right. ’
    2; Samé — Petition must be controverted by affidavits.
    The truth of the facts alleged, in the petition, and. the. sufficiency Of the: . plaintiff’s, cause- of action can be- controverted, only" by affidavits; the-answer is: not available for that purpose;.
    3. Same.
    A motion for leave to sue as a poor person may be made after- the answer is served- where there is. no unnecessary delay. '
    Aepeax from- order denying- motion for leave to- sue as: a poor person.
    R. Goeller, for appellant.
    Booraem & Hamilton, for respondent.
   Schuchman, J.

This is an appeal from an order denying; the motion for leave to sue as- a poor person.

The- motion on behalf of the plaintiff is: founded on the plaintiff’s petition, the pleadings (complaint and answer), the certificate/ of the plaintiff’s attorney-to the effect-that, he- examined the case and that the plaintiff has- a good cause of action and is opposed by the- affidavit; of William H. Hamilton,, one of the defendant’s at-tQrneys herein. . •

The moving, papers comply with the requirements of the ,Code, sections 458, 459. ' . „ . .

Code, section 46.0-,. ordains:•“ That, the eourt.may (which means must) make the order if satisfied of the truth of the facts alleged in the petition and that the applicant has a good cause of action.”

The truth of the facts set up in the petition are not controverted.

The complaint.sets up a good cause of action. It alleges facts which, if established at the trial, will entitle the plaintiff to recover.

The plaintiff need not go into the merits of the case nor prove his right to recover. McNamara v. Nolan, 13 Misc. Rep. 76.

The truth of the facts alleged in the petition and the sufficiency of the plaintiff’s cause of action, can be controverted by affidavits only.

The answer is not available for that purpose, because that createthe issues merely. Beyer v. Clark, 29 Abb. N. C. 338.

The only opposing affidavit on this motion is the one of Hamilton,

It does not controvert the truth of the facts contained in the petition nor the sufficiency of the plaintiff’s cause of action. It sets, up three affirmative, defenses, to-wit: Payment, accord and satisfaction and' a prior adjudication, which the defendant must establish on the trial by competent proof according to the rules of evidence.

Section 458 of the Code enacts: “ That a poor person may apply 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;”

This means, before or during the pendency of the action. There is no other' limitation prescribed.

The motion was made soon after the issue was joined.

Defendant’s point of laches, is of no merit, Shapiro v. Burns, 7 Misc. Rep. 418.

The plaintiff, having complied with the statutory, conditions, was entitled to have his motion granted as a matter of right; and, therefore, the order appealed from is reversed, with the costs of this appeal, and the motion granted.

Order appealed from reversed, with costs, and motion, for leave to prosecute as a poor person granted.

Goulak and O’Dwyer, JJ., concur.

Order reversed, with costs, and motion granted.  