Saltzman v. Northrop , 41 N.Y.S. 547 ( 1896 )

Van Wyck, Ch. J.

The application by plaintiff for leave to prosecute as a poor person was made under sections 458-, 460 of the Code, which permits such person, who alleges-that he has. a cause of action against another, to apply, for "such leave by ' a petition verified by his affidavit, or if an infant under fourteen, then by his guardian’s affidavit. Section 460 provides that the court so petitioned, “ if satisfied of the truth of the facts alleged, and that the applicant has a good cause of action, may, by order, admit him to prosecute as a poor person. The plaintiff’s only proof of the truth of the facts alleged, and that she had a good cause of action, was by the com-, plaint and petition, in both of which the cause of action was set forth in general terms and upon information and belief with nó sources, of information or grounds of belief stated, and both of which were verified! by the affidavit of her guardian, and by -the unverified certificate of her counsel.

In opposition to plaintiff’s application, the defendant submitted the affidavits, .made upon the affiants’ knowledge, of two eye witnesses of the accident out of which plaintiff’s cause of action was alleged to have arisen, and for some unexplained reason the plaintiff' failed to make any reply whatever to these, affidavits,, and so left the truth of the positive averments of facts contained therein unchallenged, except so far as they might be deémed controverted by the allegations upon information of the complaint and petition. These affidavits, if stating the true facts of the accident, demonstrated' not only that the defendant’s driver was not guilty of negligence, but that plaintiff’s alleged injuries were caused solely by her own negligence -in deliberately funning under the wagon to recover a lost ball with which she and a boy were playing. These unchallenged and uncontradicted averments should not have been disregarded upon such an application made under the provision of that section of the Code, and such was the rule laid down in this Court in Beyer v. Clark, 22 N. Y. Supp. 540, in which the plaintiff was given two days within which to submit affidavits in opposition to 'those of defendant, and of which permission plaintiff availed herself; however, her application was denied and she left this court to begin her action anew in the Superior Court where she secured a verdict, which, however, was set aside at the General Term of that court, although the defendant had not taken an exception On the trial upon the sole ground that her testimony was incredible. Beyer v. Clark, 8 Misc Rep. 416; 28 N. Y. Supp. 655.

Although the plaintiff obtaining the order appealed from neglected, on the application at Special Term, to submit affidavits in opposition to those made on defendant’s behalf, nevertheless she would have been granted leave there if requested, and will be here, to make reply to the affidavits, of defendant. Her proof below shows that she is’ a poor person, and if she has a good cause of action, she must have an opportunity to satisfy the court that she has, in Order that she may be accorded the right to sue as a poor person vouchsafed to such person under the Code, and to that end the order appealed from will be reversed, without costs, with leave to plaintiff to renew her motion upon the same papers and such other affidavits as she may be advised.

Sosochmah, J., concurs.

Order reversed, without costs, with leave to renew motion.