Bechtle v. Manhattan Ry. Co.

30 N.Y.S. 410, 31 Abb. N. Cas. 483, 62 N.Y. St. Rep. 120

Opinion

BISOHOFF, J.

Section 460 of the Code makes it mandatory upon the court to allow a party to sue as a poor person in a case where the required facts are made to appear. Shapiro v. Burns, 31 Abb. N. C. 144, 27 N. Y. Supp. 980. But these applications are not encouraged, and the statute is to be construed strictly. Moore v. Cooley, 2 Hill, 412; Brown v. Story, 1 Paige, 588. That the statute relates to personal actions, and, with the expressed exception in the case of an infant suing by guardian ad litem, provides no justification for extending its application to persons acting in a representative capacity, is, I think, apparent upon a careful reading, Code Civ. Proc. § 458 et seq. With regard to responsibility for costs, a committee of a lunatic is placed in the same category with administrators and other representative parties. Code Civ. Proc. § 3271. And I can find no more justification for granting such an application upon motion by a committee than would exist in a case where an administrator so petitions. Such a petition the special term has denied. In re Bengtoon, Law J. Feb. 8,1894, per Pryor, J.¹ Motion denied. Ho costs.

1 No opinion.