Bag. 460. When and how leave granted. 461. Not liable for costs and fees. 462. When leave may be annulled. 463. When defendant may petition to defend as a poor person. 464. Contents of petition. 465. Proceedings thereon. 466. Appeal, when party prosecutes or defends as a poor persem. 467. Costs in favor of petitioner. § 458. [Amended, 1891.] Who may petition for Leave to prosecute as a poor person. A poor person, whether an adult or infant, not being of ability to sue, who alleges that he has a cause of action against another person, may apply by petition to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have an attorney and counsel assigned to conduct his action.* 2 R. S. 444, 21 (2 Edm. 463). Thomas v. Wilson, 6 Hill, 257; Isnard v. Cazeaux, 1 Paige, 39; Ostrander v. Harper, 14 How. 16; Moore v. Cooley, 2 Hill, 412; McDonald v. Bank, 2 How. 35; Roberti v. Carlton, 18 id. 466; Robertson v. Robertson, 3 Paige, 387; Florence v. Bulkley, 1 Duer, 705; Hotaling v. McKenzie, 7 Civ. Proc. 320. 459. [Amended, 1891.] Contents of petition. The petition must state: 1. The nature of the action brought or intended to be brought. 2. That the applicant is not worth one hundred dollars besides the wearing apparel and furniture necessary for himself and his family, and the subject-matter of the action. It must be verified by the applicant's affidavit, unless the applicant is an infant under the age of fourteen years, and in that case by the affidavit of his guardian appointed in said action, and supported by a certificate of a counselor at law to the effect that he has examined the case and is of the opinion that the applicant has a good cause of action.* Id., 2. People v. Phillips, 30 Hun, 553. 460. When and how leave granted. The court to which the petition is presented, 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, and assign to him an attorney and counsel to prosecute his action, who must act therein without compensation. Id., 3. Wilkinson v. Belsher, 2 Bro. C. C. 273; Kerr v. Davis, 7 Paige, 54 Isnard v. Cazeaux, 1 id. 39. 461. Not liable for costs and fees. A person so admitted, may prosecute his action, without paying fees to any officer; and he shall not be prevented from *In effect September 1, 1891, and not applicable to actions or proceedings commenced prior to that date. prosecuting the same, by reason of his being liable for the costs of a former action, brought by him against the same defendant.(1) If judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him. 2 R. S. 445, 4. (1) Roberti v. Carlton, 18 How. 467; Kerr v. Davis, 7 Paige, 54; Steele v. Mott, 20 Wend. 679; and see 1 Walt's Pr. 211. $462. When leave may be annulled. If the person so admitted is guilty of improper conduct in the prosecution of his action, or of wilful or unnecessary delay, the court may, in its discretion, annul the order admitting him to prosecute as a poor person; and he shall thereafter be deprived of all the privileges conferred thereby. Id., 5. Steele v. Mott, 20 Wend. 679. § 463. When defendant may petition to defend as a poor person. A defendant in an action involving his right, title, or interest, in or to real or personal property, may petition the court, in which the action is pending, for leave to defend the action as a poor person, and to have an attorney and counsel assigned to conduct his defence. New. § 464. Contents of petition. The petition must contain the same matters, respecting the ability of the petitioner, required to be contained in a petition for leave to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence. New. -- $465. Proceedings thereon. - The provisions of this article, relating to the order, to be made upon an application for leave to prosecute as a poor person, and the proceedings subsequent thereto, apply to the order and subsequent proceedings, upon an application for leave to defend as a poor person. New. § 466. Appeal when party prosecutes or defends as a poor person. An order, made as prescribed in this article, does not authorize the petitioner to take or maintain an appeal, as a poor person; but where an appeal is taken by the adverse party, the order is appli cable, in favor of the petitioner, as respondent in the appeal. New. Ostrander. Harper, 14 How. 16; Moore v. Cooley, 2 Hill, 412; McDonald. Bank, 2 How. 35; Bolton v. Gardner, 3 Paige, 273. 467. Costs in favor of petitioner. Where costs are awarded in favor of a person, who had been admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs. New. ARTICLE FOURTH. INFANT PLAINTIFFS AND DEFENDANTS. SEC. 468. Right of infant to bring action. 469. Guardian for infant plaintiff must be appointed. 470. Application therefor. 471. Application for appointment of guardian for infant defendant. 472. Guardian, how appointed. Clerk, when to act. 473. Guardian for absent infant defendant. ! 474. Guardian not to receive property until security given. 475. Security. 476. Last two sections not to apply to general guardian. 468. Right of infant to bring action. Where an infant has a right of action, he is entitled to maintain an action thereon; and the same shall not be deferred or delayed, on account of his infancy. See Lansing v. Gulick, 26 How. 250; Matter of Marsac, 15 id. 383; Prior v. Prior, 15 Civ. Proc. 436; Matter of Watson, 2 Dem. 642; Bayer v. Phillips, 17 Abb. N. C. 425. $469. [Amended, 1891.] Guardian for infant plaintiff must be appointed. Before a summons is issued, in the name of an infant plaintiff, a competent and responsi ble person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof, except where such infant prosecutes as a poor person as provided for under section 459 of this act, in which case security for costs shall not be required. [In effect September 1, 1891; not applicable to actions or proceedings commenced prior to such date. Id., 2, am'd in accordance with Co. Proc., § 115. Rutter v. Puckhofer, 9 Bosw. 638; Freybergh v. Pelerin, 24 How. 202; Treadwell v. Bruder, 3 E. D. Smith, 597; Boylen v. McAvoy, 29 How. 278; Fairweather v. Satterly, 7 Rob. 546: Matter of Whitlock, 32 Barb. 49; Cook v. Rawdon, 6 How. 233; Robertson v. Robertson, 3 Paige, 387; Grant v. Van Schoonhoven, 9 id. 255; Seaton v. Davis, 1 T. & C. 91; Leopold v. Meyer, 10 Abb. 41; Grantman v. Thrall, 29 How. 344; s. c., 19 Abb. 308; 31 How. 464, 2469: Smart v. Haring, 14 Hun, 276; Segelken v. Meyer, id. 593: Sparman v. Keim, 6 Abb. N. C. 353; Wise v. Commercial Ins. Co., 7 Daily, 258; Schoen v. Schleissenger, 57 How. 490; Muller v. Struppman, 6 Abb. N. C. 343; Sternburgh v. Man. R. R. Co., 22 Hun, 49; Matter of Mang, 50 Super. 96; Imhoff v. Wurtz, 9 Civ. P. R. 48; Buermann v. Buermann, id. 146; 17 Abb. N. C. 391; Reina v. Rossie Iron Works, 47 Hun, 154. § 470. Application therefor. The guardian must be appointed upon the application of the infant, if he is of the age of fourteen years, or upwards; or, if he is under that age, upon the application of his general or testamentary guardian, if he has one, or of a relative or friend. If the application is made by a relative or friend, notice thereof must be given to his general or testamentary guardian, if he has one; or, if he has none, to the person with whom the infant resides. Co. Proc., 116, subd. 1. 471. [Amended, 1879.] Application for appoint. ment of guardian for infant defendant. An infant defendant must also appear by guardian, who must be a competent and responsible person,(1) appointed upon the application of the infant, if he is of the age of fourteen years, or upwards, and applies within twenty days after personal service of the summons, or after service thereof, is complete, as prescribed in section four hundred and forty-one of this act; or if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. Where the application is made by a person other than the infant, notice thereof must be given to his general or testamentary guardian, if he has one within the State; or, if he has none, to the infant himself, if he is of the age of fourteen years, or upwards, and within the State; or, if he is under that age, and within the State, to the person with whom he resides. $472. [Amended, 1879.] Guardian, how appointed. Clerk, when to act. The court in which the action is brought, or a judge thereof, or if the action is brought in the supreme court, the county judge of the county where the action is triable, may appoint a guardian ad litem for an infant, either plaintiff or defendant, as prescribed in this article. (1) The clerk must act in that capacity for an infant defendant where the court or the judge appoints him.(2) No person, other than the clerk, shall be appointed a guardian ad litem, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment.(3) (1) Predicated on Co. Proc., 115. (2) New. (3) 2 R. S. 446, 24. Leopold v. Meyer, 10 Abb. 41. 473. [Amended, 1889.] infant defendant. - Where Guardian for absent an infant defendant resides out of the State or resides within the State, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the State upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section four hundred and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service. Based on Co. Proc., part of 116. § 474. Guardian not to receive property until security given.- Except in a case where it is otherwise specially prescribed by law, a guardian, appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, other than costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court, or a county judge, to account for and apply the same, under the direction of the court. Co. Proc., 420, am'd. § 475. Security. The security must be a bond to the infant, in such penalty as the judge directs, not less than twice the sum, or the value of the property, to be received, executed by the guardian and at least two sureties, approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards apply for an order, directing a new bond to be given, with an increased penalty; or the court may so direct, of its own motion. 2 R. S. 446,5 (2 Edm. 465). Waring v. Waring, 7 Abb. 472; Croghan v. Livingston, 6 id. 350; s. c., 25 Barb. 336; 17 N. Y. 218. § 476. Last two sections not to apply to general guardian. The last two sections do not apply to the general guardian of the infant, who has been appointed his guardian ad litem, as prescribed in this article; but the court may, at any time, require the general guar |