
    Rebecca Shapiro, an Infant, by her Guardian ad litem, Pl’ff, v. Michael F. Burns et al., Def’ts.
    
      (New York Common Pleas, Special Term,
    
    
      Filed February, 1894.)
    
    1. Leave to Sue—Poor Person.
    A motion for leave to sue as a poor person may be made after action brought and any time during its pendency.
    2. Same—Security for costs.
    Such application is not barred by an order to file security for costs.
    3. Same—Defense.
    The wealth of the guardian ad litem, though father of the plaintiff, is no answer to the motion.
    4. Same—Discretion.
    Upon compliance with the prescribed conditions, such right is not dependent upon judicial discretion.
    The opinion states the case.
    
      Charles M, Koplih, for pl’ff; Wm. S. Cogswell, for def’ts,.
   Pryor, J.

Before action was brought, a guardian ad litem was appointed for the infant plaintiff; after action commenced, an , order was made requiring plaintiff to furnish security for costs; but instead plaintiff now moves for leave to prosecute the suit in forma pauperis.

It is plain upon the terms of the statute (§§ 458 and 459, Code of Civil Procedure) that an infant may be allowed the privilege of suing as a poor person, and that application for the privilege may be made after the commencement of the action. From the reason of the thing, leave to prosecute in forma pauperis must be accorded before or during the pendency of the action ; but otherwise no limitation of time is prescribed for the application.

The defendant objects that the court has directed the plaintiff give security for costs, but the motion involves a vacatur of the ' order for security ; and, the order out of the way, that permission to prosecute the action as a poor person may be now conceded, is plainly the option of the Court of Appeals, Sherman v. Pope, 106 N. Y. 664; 8 St. Rep. 710. Were it not so, then, as here, a defendant might, within two days after suit brought, preclude the plaintiff from the right of prosecuting in forma pauperis—a right as already seen, open to him at any time during the pendency of the action.

It is still insisted that, because the guardian ad litem is father of the plaintiff and a man of means, the plaintiff should not be suffered to prosecute as a poor person. But the wealth of the father is not the wealth of his child; nor will the product of the suit, if successful, inure to the benefit of the father. The Code is explicit, that it is the poverty of the plaintiff, not of the guardian ad litem, that confers the privilege of suing as a poor person. Besides, § 469 of the Code, by requiring a “responsible person” to be guardian ad litem, and rule 49, by exacting that the guardian shall be of “sufficient ability to answer to the infant” for misconduct of the trust, demonstrate that the possession of means by the guardian is no bar to the plaintiff’s application to sue as a pauper.

It is urged, however, and urged with force, that if the order be granted, then the plaintiff cannot possibly lose nor the defendant possibly gain by the event of the litigation, and that yet, without the least hazard on her part, the plaintiff may recover $5,000 of the defendant This game of “heads I win and tails you lose” in ■a lawsuit, was not possible in our jurisprudence until 1891, when, for the first time, the liability in costs of a guardian ad iitem for a poor person was abolished. This disparity of advantage between the parties in an action may" not be thought to consist with justice, but ita lex scrvpta esi, and I must apply the law as it is given to me.

It is argued, however, that the unequal operation of the statute appeals to the judicial discretion against the allowance of the order. Is it discretionary with the court to accord or refuse to a plaintiff the liberty of suing as a poor person when he conforms to the prescribed conditions? True the language of the Code is that “the court may admit him to prosecute as a poor person but it is the settled rule of construction that-when by permissive words power is conferred on an officer for the benefit of the public or third persons “may” means “must,” and power is the equivalent of duty. 14 Am. & Eng. Encyl. of Law, pp. 979-981.

That, upon compliance with the statutory conditions, one has a right to sue as a poor person is apparent from the nature of the case and all the provisions of the law on the subject.

Upon principle judicial discretion is an anomaly in free government, and from its liability to abuse should be tolerated with the least possible latitude in operation. The state says all persons in a particular category may have access to its courts without expense; and for me to repel any one of the class upon my estimate of his desert would, I conceive, be inconsistent with the mandate of the law, and a precedent fraught with possibilities of arbitrary and unjust discrimination.

If the legislature had intended to repose the power in the discretion of the judge it would have said so in terms, as it did in conferring authority to revoke the leave to sue in forma pauperis. Code, § 462.

If, however, I have a discretion, I exercise it in favor of the plaintiff.

Motion granted; no costs.  