Pankawicus v. Nichols Copper Co.

Full title: JOHN PANKAWICUS, Respondent, v . NICHOLS COPPER COMPANY, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 15, 1915

169 App. Div. 419 (N.Y. App. Div. 1915)

155 N.Y.S. 123

Opinion

October 15, 1915.

Frank L. Dolfini [ Bertrand L. Pettigrew with him on the brief], for the appellant.

H.G. McDowell [ James F. O'Neill with him on the brief], for the respondent.

JENKS, P.J.:

This order for leave to prosecute as a poor person is fatally defective because it does not assign to that person an attorney and counsel to prosecute the action without compensation, in accord with the provisions of section 460 of the Code of Civil Procedure. ( Rutkowsky v. Cohen, 74 App. Div. 415; Sumkow v. Sheinker, 84 id. 463; Daus v. Nussberger, 25 id. 185.)

The fact that in his previous action for the same cause the plaintiff was dismissed, with costs against him, which costs are unpaid, is not a bar to a prosecution of his proposed action (Code Civ. Proc. § 461), but such outcome of that action may properly be considered upon the essential question whether the petitioner has a good cause of action. (Id. § 460. See Young v. Nassau Electric R.R. Co., 34 App. Div. 126; Milliman Costs, § 267.)

The order of the County Court of Queens county is reversed, without costs, and matter remitted to the County Court, but without prejudice to a renewal of the application.

CARR, STAPLETON, MILLS and PUTNAM, JJ., concurred.

Order of the County Court of Queens county reversed, without costs, and matter remitted to said court, but without prejudice to a renewal of the application.