
    Kate Trimble, an Infant, Plaintiff, v. Michael Kilgannon, Defendant.
    (New York Superior Court
    Special Term,
    May, 1895.)
    An infant plaintiff, suing by guardian ad litem, may be permitted to sue in forma pemperis, although the defendant requires security for costs.
    Cross-motions for security for costs and for leave to sue as a poor person.
    
      Howe & Hummel, for plaintiff.
    
      Louis J. Grant, for defendant.
   Gilbersleeve, J.

The action is brought to recover damages for a breach of promise to marry. The jfiaintiff is an infant under the age of twenty-one, and sues by her guardian ad litem. The defendant makes a motion for an order compelling plaintiff to give security for costs, on the ground that she is an infant whose guardian ad litem has not given such security. See Code, § 3268, subd. 5. At the same time, the plaintiff makes a motion, under section 458 of the Code, for leave to sue as a poor person. There can be no question that section 458 of the Code, providing that “ a poor 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. See Tobias v. R. R. Co., 39 N. Y. St. Repr. 183; Harris v. Mutual Life Ins. Co., 10 N. Y. Supp. 474. As it is in the discretion of the court to allow an action to be prosecuted in- forma pcmperis, an infant plaintiff, suing by her guardian ad litem, may be permitted to sue in such form, in spite of the provisions of section 3268 of the Code, subdivision 5, to the effect that defendant, in such case, may require security for costs. See Harris v. Mutual Life Lns. Co., supra. These two motions are made at the same time, and the facts necessary to justify each of the orders asked for are shown. In such case, it seems to me that the motion for leave to prosecute in forma pauperis should be granted, and the motion for security for costs should be denied. See Hotaling v. McKenzie, 7 Civ. Proc. Rep. 320. Mo costs of motion.

Ordered accordingly.  