Order to sue in partition — Actions by poor persons. Section 4. Order granting leave to institute an action of partition on the part of an infant. SUPREME COURT- COUNTY OF In the matter of the petition of an infant, John Den, and his guardian, Richard Fen. At a special term (as in p. 199.) On reading and filing the petition of John Den, an infant, and Richard Fen, his guardian, and on motion of (A. B.) Esq., of counsel for petitioners: ORDERED: 1. That proceedings may be commenced in this court on behalf of said John Den for a partition of the real estate described in said petition, and for a sale thereof, if it shall appear that such partition cannot be made without great prejudice to the owners. 2. That the said Richard Fen be and he hereby is appointed guardian ad litem, for the purposes of such proceedings, on his executing to the people of this State a bond in the penalty of dollars, to be approved by a justice of this court. ARTICLE VII. ACTIONS BY POOR PERSONS. Section 1. Who may prosecute as a poor person. a. In general. It is provided by statute that any poor person who has a cause of action against another, but is destitute of the means of defraying the expenses of a suit, may, upon application, obtain an order of the court assigning him counsel, solicitors, attorneys, and all other officers requisite for prosecuting his suit, who shall act without compensation; and also exempting him from the payment of fees to any officers or ministers of justice, and from all liability for any costs in the suit. 2 R. S. 444, 445, §§ 1–6 (463). This provision of the statute is retained under section 471 of the Code. It is not confined to any particular form or class of actions, or to any particular class of persons, but is of general application, and extends to suits in courts of equity as well as to actions in courts of law. Ib., § 6. The only class of persons, under any construction of the statute, not entitled to this privilege are non-residents, and it is not clear that the privilege does not extend to them. See Thomas v. Wilson, 6 Hill, 257. Who may prosecute-Application, how, when, and where made. But in every case, before any order can issue granting an application for leave to sue in forma pauperis, it must appear to the satisfaction of the court that the applicant is in fact a pauper. Isnard v. Cazeaux, 1 Paige, 39; 2 R. S. 445, § 2 (464). A party bringing an appeal cannot claim the privilege, as an appeal is not a cause of action within the meaning of the statute. Ostrander v. Harper, 14 How. 16; Bolton v. Gardner, 3 Paige, 273 (280); Moore v. Cooley, 2 Hill, 412; McDonald v. Bank for Savings in New York, 2 How. 35. b. Married women. Under the provisions of this statute a married woman may obtain leave to prosecute in forma pauperis for injuries to her separate estate. Roberti v. Carlton, 18 How. 466. So, upon a proper application, a wife may be permitted to bring an action, in forma pauperis, against her husband for a separation. Robertson v. Robertson, 3 Paige, 387. c. One of several plaintiffs. It is not sufficient to entitle one of several co-plaintiffs to an order granting him leave to sue as a poor person, that his application show that he is individually unable to prosecute the action by reason of poverty. The poverty and inability must be shown to extend to all the plaintiffs, or the relief will be denied. The courts will not allow responsible plaintiffs to join a pauper with themselves in an action, and thus escape liability to costs if defeated, and yet share the costs with him if successful. Ostrander v. Harper, 14 How. 16. d. Costs of former suit. The fact that the party applying for leave to sue as a poor person is indebted to the same defendant for the costs of a former suit, will not defeat the application. Roberti v. Carlton, 18 How. 466. The statute expressly provides that liability for the costs of a former suit shall not prevent the party from prosecuting as a poor person. 2 R. S. 445, § 4 (464). Section 2. Application, how, when, and where made. a. Application, where made. An application for leave to sue as a poor person must be made to the court where the action is pending or in which it is intended to be brought. 2 R. S. 444, § 1 (463). b. Application, when made. It may be made before the commencement of the action, or it may be made within any reasonable time thereafter. See 2 R. S. 444, § 1 (463). An application made after a suit has been long pending, and has been referred and noticed for hearing, will be denied. Florence v. Bulkley, 1 Petition for leave to sue. Duer, 705; S. C., 12 N. Y. Leg. Obs. 28. See Ostrander v. Harper, 14 How. 17; Swan v. Mathews, 3 Duer, 613. c. Application, notice of. An application for leave to sue in forma pauperis may be made ex parte if before suit; but, if made during the pendency of the action, must be on due notice and after due service of the moving papers on the party defendant. Eight days' notice of the application should be given, unless a shorter time is fixed by an order to show cause. Ostrander v. Harper, 14 How. 16; Thomas v. Wilson, 6 Hill, 257; Isnard v. Cazeaux, 1 Paige, 39. An order allowing a party to proceed as a poor person, if obtained on an ex parte application after the commencement of the action, will be revoked. Ib. d. Petition for leave to sue. The application for leave to sue as a poor person, should be made upon a petition, showing (1) the nature of the suit brought or intended to be brought; (2) that the applicant is not worth twenty dollars, excepting the wearing apparel and furniture necessary for himself and his family, and excepting the subject-matter of the action when not in possession thereof. This petition should be verified by the affidavit of the party seeking to be allowed to prosecute as a poor person, and should be supported by a certificate of a counselor of the court, that he has examined the claim, and is of the opinion that such poor person has a good cause of action. 2 R. S. 445, § 2 (464). An order granted on a petition by a third person will be revoked. Wilkinson v. Belsher, 2 Bro. C. C. 273. Petition for leave to prosecute in forma pauperis (action not commenced). To the Supreme Court of the State of New York (or other court): The petition of A. B. of in the county of respectfully shows: 1. That (C. D., of, etc., is justly indebted to your petitioner in the sum of dollars, and interest thereon from the day of 18 for work, labor and services performed by your petitioner, for the said [C. D.] at his request, during the years 18 18, no part of which has been paid, or other cause of action stated concisely). 2. That your petitioner is a poor person and is not worth twenty dollars, excepting necessary wearing apparel, and furniture for himself and family, and the claim above mentioned. 3. That your petitioner desires to commence an action for the The order. recovery of said (claim), but for the reason hereinbefore stated is unable to bear the expenses of the same. Wherefore your petitioner prays that he may be admitted to prosecute the said action as a poor person, and that, according to statute, an attorney and counselor of this court, and all other officers requisite for the prosecuting of the said action may be assigned him for that purpose. (Date.) Verification the same as to a complaint.) (Signature.) Certificate of a Counselor (to be annexed). To the Supreme Court of the State of New York: I hereby certify that I have examined the claim of A. B. against C. D., set forth in the petition hereto annexed, and am of opinion that the said A. B. has a good cause of action thereon. (Dated.) Section 3. The order. R. C., Counselor at law. a In general. The court to which an application is made in the manner set forth in the preceding section, if satisfied that the facts set forth in the petition are true, and that the applicant has a meritorious cause of action, must, by order, admit him to prosecute as a poor person, and assign to him counsel, solicitors, attorneys and all other officers requisite for prosecuting his suit, who shall conduct the action free of charge. 2 R. S. 445, 3 (464). b. Form of order. If the order is granted on an ex parte application, as it may be when the application is made before a suit is commenced, it should be prepared in advance by the attorney to be in readiness for submission to the court. The order may be in the following form: Order permitting a person to sue in forma pauperis, action SUPREME COURT. not commenced. At a special term (as in p. 199.) On reading and filing the petition of A. B. above named, and the certificate of (R. C., Esq.) counselor at law, dated the day of 18 " ORDERED: 1. That the said A. B. be and he is hereby admitted to prosecute as a poor person, free of all liability for costs, an action in this court against C. D. (it may be prudent to 27 Petition for leave to prosecute in forma pauperis. add: and such other persons as may be necessary parties defendant) for the recovery of (the claim mentioned in said petition). 2. That C. H. S., Esq., counselor at law, be and he is hereby assigned to said A. B. as his attorney, whose duty it shall be to conduct the said action free of charge to said A. B. Petition for leave to prosecute in forma pauperis (action commenced). (Title of cause.) (As in section 2, p. 208, to the end of first paragraph; form.) 2. That your petitioner has commenced an action as above entitled for the recovery of said (claim) and (the same is now at issue). 3. That your petitioner is unable to maintain the said action by reason of the expense to which he has been, and is likely to be put to, concerning the same. 4. That your petitioner is not worth twenty dollars, excepting necessary wearing apparel and furniture for himself and family, and the claim above mentioned. 5. That your petitioner desires to continue the prosecution of said action, but for the reason hereinbefore stated (as in section 2 [form], to the end, including the certificate of a counselor of the court). (Date.) (Verification the same as to a complaint.) (Signature.) Order granting leave to continue an action in forma pauperis. (Title of cause.) At a special term (as in p. 199). On reading (as in section 3, p. 209 [form], to the word "ordered"). 1. That the above-named plaintiff be allowed to continue this action as a poor person, without any further liability for costs or charges. 2. That C. H. S., Esq., counselor at law, be and he is hereby assigned to said A. B. as his attorney, whose duty it shall be to conduct the said action free of charge to said A. B. (Title of action.) Notice of motion. Take notice that I shall apply to the supreme court (or other court) at the next special term thereof, to be held at in the county of 18 at on the day of o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order granting the prayer of the petition, a copy of which is hereto annexed. (Dated.) Yours truly, E. B., Attorney for Plaintiff. |