
    Leonora Lampy, Respondent, v. Philip Freedman, Appellant.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Poor litigants — Effect of grant of petition — In general — Right to costs.
    In an action in the Municipal Court of the city of New York a plaintiff who sues in forma pauperis is, nevertheless, entitled to costs upon recovering judgment; and the court will only direct the distribution of such costs, under section 53 of the Municipal Court Act, where it has assigned counsel to the plaintiff.
    MacLean, J., dissented.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fifth district, borough of Manhattan.
    Levitt & Hetkin, for appellant.
    Harrie C. Manheim, for respondent.
   Seabury, J.

The plaintiff sued for the value of a garment delivered to the defendant and which the defendant did not return. ‘ The plaintiff claimed that this garment was delivered between the 15th and the 22d days of February, 1908. The defendant claimed that the plaintiff delivered the garment to him on November 27, 1907, and that, on December 5, 1907, his place of business was burglarized and the garment in question stolen. The plaintiff was corroborated by her husband and a disinterested witness. The defendant was not corroborated. The decision of the trial justice in favor of the plaintiff should not be disturbed. The defendant also insists that that part of the judgment awarding costs to the plaintiff was unauthorized, and claims that, as the plaintiff sued in forma pauperis and counsel was not designated by the court, the taxation of costs in favor of the plaintiff was unauthorized. The right to costs which is given to litigants by statute is a substantial one (Sturgis v. Spofford, 58 N. Y. 103); and, in the absence of a statute withdrawing such rights from litigants suing in forma pauperis, the usual costs are recoverable. 11 Cyc. 204. In a case of this character, the court is not obliged to assign counsel, but under section 470 of the Municipal Court Act may do so. Section 53 of the Municipal Court Act provides for the distribution of costs awarded in favor of a person who prosecutes or defends as a poor person when collected, but this section does not deprive the poor person of the right to recover costs where no attorney has been assigned to prosecute or defend on her behalf.

Judgment affirmed, with costs.

Gildersleeve, J., concurs.

MacLean, J. (dissenting).

Section 53 of the Municipal Court Act, prescribing that costs awarded a person allowed to sue in forma pauperis are to be distributed among the attorneys and counsel assigned to the poor person, implies that the poor person’s action will be conducted, according to section 458, Code of Civil Procedure, by an attorney and counsel assigned by the court, which, properly enough, should see payment made for the services of those whom it has called upon, if wherewithal there be therefor. The section, however, contains nothing warranting a person, specially permitted to escape all costs, public and private, against himself, to recover costs against others.

Judgment affirmed, with costs.  