Conboy v. Ayres
New York Supreme Court
This is a motion that the plaintiff file security for costs, being an infant, brought on upon the usual order requiring security to be filed, or to show cause, with a stay of all other proceedings on the part of the plaintiff meanwhile. In opposition the plaintiff presents an order allowing her to continue the action in forma pauperis, obtained ex parte since the said order to file security or show cause was granted.
1Opinion of the Court
Gaynor J.:
An order to prosecute in forma pauperis cannot be obtained ex parte after the action is begun (1 Paige, 39; 6 Hill, 257; 14 How. Pr., 16). It might be inferred from the report of the decision in Shearman v. Pope (106 N. Y. 664) that the order was obtained on notice, but reference to the record shows that not to have been so. The court either overlooked this, or else the ex parte.order was deemed valid until vacated.
Let the ex parte order be vacated, and the time to give security be postponed for ten days.
Ordered accordingly.
2Cases cited2 opinions
- Isnard v. CazeauxNew York Court of Chancery · 1828
- Ostrander v. HarperNew York Supreme Court · 1857
3Cited by1 opinion
- Rosetano v. StateNew York Court of Claims · 1955