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Rosa v. Second Avenue Railroad

Appellate Division of the Supreme Court of New York, First Department
Aug 1, 1897
20 App. Div. 334 (N.Y. App. Div. 1897)

Opinion

August Term, 1897.

Benjamin Patterson, for the appellant.

Charles C. Nott, Jr., for the respondent.

Present — PATTERSON, RUMSEY, WILLIAMS, O'BRIEN and PARKER, JJ.


The petition presented to Justice PRYOR, upon the application of the plaintiff for leave to prosecute as a poor person, fully complied with the requirements of the statute, and for that reason it was proper to grant the application. ( Feier v. Third Ave. R.R. Co., 9 App. Div. 607.) It was not proper to set aside the order granting that permission, unless it was made to appear either that some material facts were misstated, or that facts were suppressed which, if considered, should have required the court to refuse leave to prosecute as a poor person. No such condition of affairs is made to appear. If all the facts shown by this record had been made to appear to the justice to whom the application for leave to prosecute as a poor person was made, he would have known that certain costs of a former action adjudged to be paid by the plaintiff to the defendant had not been paid. But that fact was not sufficient to prevent the plaintiff from prosecuting this action. For that reason it was not proper to vacate that order. So long as that order stood, the remainder of the order staying the plaintiff's proceedings until the payment of those costs and requiring the plaintiff to give security for costs of this action was clearly improper. For that reason the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.


Order reversed, with ten dollars costs and disbursements.


Summaries of

Rosa v. Second Avenue Railroad

Appellate Division of the Supreme Court of New York, First Department
Aug 1, 1897
20 App. Div. 334 (N.Y. App. Div. 1897)
Case details for

Rosa v. Second Avenue Railroad

Case Details

Full title:MICHAEL ROSA, an Infant, by LUCIETTA ROSA, his Guardian ad Litem…

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

Date published: Aug 1, 1897

Citations

20 App. Div. 334 (N.Y. App. Div. 1897)
46 N.Y.S. 807