ART. 3. ARTICLE THIRD. PARTIES PROSECUTING AND DEFENDING AS POOR PERSONS. SECTION 458. Who may petition for leave to prosecute as a poor person. 459. Contents of petition. 460. When and how leave granted. 463. When defendant may petition to defend as a poor person 465. Proceedings thereon. 466. Appeal, when party prosecutes or defends as a poor person. § 458. A poor person, not being of ability to sue, who alleges that who may he has a cause of action against another person, may apply, by peti- leave to petition for tion, to the court in which the action is pending, or in which it is prosecute intended to be brought, for leave to prosecute as a poor person, and to person. have an attorney and counsel assigned to conduct his action. § 459. 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, and supported by a certificate of a counsellor at law, to the effect that he has examined the case, and is of opinion that the applicant has a good cause of action. as a poor Contents of petition. how leave § 460. The court to which the petition is presented, if satisfied of When and the truth of the facts alleged, and that the applicant has a good cause granted. 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. for costs § 461. A person so admitted, may prosecute his action, without pay- Not liable ing fees to any officer; and he shall not be prevented from prosecuting and fees. the same, by reason of his being liable for the costs of a former action, brought by him against the same defendant,* if judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him. leave may § 462. If the person so admitted is guilty of improper conduct in the When prosecution of his action, or of wilful or unnecessary delay, the court be anmay, in its discretion, annul the order admitting him to prosecute as a nulled. poor person; and he shall thereafter be deprived of all the privileges conferred thereby. fendant § 463. A defendant in an action involving his right, title, or interest, When dein or to real or personal property, may petition the court, in which the may petiaction is pending, for leave to defend the action as a poor person, and tion to deto have an attorney and counsel assigned to conduct his defence. fend as a poor per Contents of § 464. The petition must contain the same matters, respecting the son. ability of the petitioner, required to be contained in a petition for leave petition. to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence. So in the original. TITLE 2. Proceed on. § 465. The provisions of this article, relating to the order, to be ings there- 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. Appeal, § 466. An order, made as prescribed in this article, does not authorize prosecutes the petitioner to take or maintain an appeal, as a poor person; but or defends where an appeal is taken by the adverse party, the order is applicable, in favor of the petitioner, as respondent in the appeal. when party as a poor person. Costs in favor of petitioner. § 467. Where costs are awarded in favor of a person, who has 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. Right of infant to bring action. Guardian for infant plaintiff must be appointed. Application therefor. tion for ap ARTICLE FOURTH. INFANT PLAINTIFFS and Defendants. SECTION 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 infant defendant in certain real actions. 474. Guardian not to receive property until security given. 475. Security. 476. Last two sections not to apply to general guardian. § 468. Where an infant has a right of action, he is entitled to main. tain an action thereon; and the same shall not be deferred or delayed, on account of his infancy. § 469. Before a summons is issued, in the name of an infant plaintiff, a competent and responsible person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof. § 470. 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. Applica § 471. An infant defendant must also appear by guardian, who must pointment be a competent and responsible person, appointed upon the application of guardian of the infant, if he is of the age of fourteen years, or upwards, and defendant applies within twenty days after personal service of the summons, or for infant 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. ART. 4. act. § 472. The court in which the action is brought, or a judge thereof, Guardian, or, if the action is brought in the supreme court, the county judge of how ap pointed. the county where the action is triable, may appoint a guardian ad litem Clerk, for an infant, either plaintiff or defendant, as prescribed in this article. when to The clerk must act in that capacity for an infant defendant where the court or the judge appoints him. 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. for absent § 473. Where an infant defendant resides within the state, and is Guardian temporarily absent therefrom, the court may, in its discretion, make infant dean order designating a person to be his guardian ad litem, unless he, fendant. 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. not to re § 474. Except in a case where it is otherwise specially prescribed by Guardian law, a guardian, appointed for an infant, as prescribed in this article, ceive propshall not be permitted to receive money or property of the infant, other erty until security than costs and expenses allowed to the guardian by the court, until he given. 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. § 475. The security must be a bond to the infant, in such penalty as Security. 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. sections § 476. The last two sections do not apply to the general guardian of Last two the infant, who has been appointed his guardian ad litem, as prescribed not to apin this article; but the court may, at any time, require the general ply to guardian to give additional security for the faithful discharge of his guardian. trust, before receiving money or property of the infant, under a judgment or order in the action. general defend § 477. A person appointed guardian, as prescribed in this article, for Liability of an infant defendant in an action, is not liable for the costs of the action, ant's guarunless specially charged there with by the order of the court, for per- dian for sonal misconduct. costs. 89 TITLE 1. CHAPTER VI. PLEADINGS IN COURTS OF RECORD, INCLUDING COUNTER- TITLE I.-THE CONSECUTIVE PLEADINGS IN AN ACTION. II. PROVISIONS GENERALLY APPLICABLE TO PLEADINGS. TITLE I. The consecutive pleadings in an action. ARTICLE 1. Complaint. 2. Demurrer. 3. Answer. 4. Reply. ARTICLE FIRST. COMPLAINT. First pleading to be complaint. Copy complaint, served. SECTION 478. First pleading to be complaint. 481. Complaint what to contain. 482. When interlocutory and final judgment may be demanded. 484. What causes of action may be joined in the same complaint. *485. When cause of action deemed single. * 486. When alternative legal or equitable judgment may be demanded. § 478. The first pleading, on the part of the plaintiff, is the complaint. § 479. If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within when to be or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint, within twenty days after he appears in the action. Conse quence of failure. § 480. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. Stricken out. § 481. The complaint must contain: ART. 1. Complaint; contain. 1. The title of the action, specifying the name of the court in which what to it is brought; if it is brought in the supreme court, the name of the county, which the plaintiff designates as the place of trial; and the names of all the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts, constituting each cause of action, without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled. When interlocutory judgment may be de § 482. In an action triable by the court, without a jury, the plaintiff may, in a proper case, demand an interlocutory judgment, and also a and final final judgment, distinguishing them clearly. § 483. Where the complaint sets forth two or more causes of action, manded. the statement of the facts constituting each cause of action must be action to be sepaseparate and numbered. rately Causes of What causes of § 484. The plaintiff may unite, in the same complaint, two or more stated. causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they are brought to recover as follows: 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal conversation, or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. 8. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the action; and it must appear, upon the face of the complaint, that they do not require different places of trial. action may be joined in the same complaint. 91 |