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and 106 New York State Reporter

The appellant urges but a single point upon this appeal, and that is that "the facts presented permit of no other conclusion than that the accident was due entirely to the fault of the driver of the patrol wagon, and the defendant's motion to dismiss the complaint should have been granted." This accident occurred at a street intersection, where the rights of the parties were equal. The driver of the patrol wagon (whose negligence might, perhaps, be imputed to the plaintiff, and it was in this light that the question was presented to the jury by the charge of the learned trial court) was bound only to the exercise of that degree of care which a reasonably prudent man would or should have exercised in like circumstances; and we are of opinion that the evidence supports the conclusion that the plaintiff did exercise the degree of care which was fairly to be expected of the driver of a patrol wagon. He was ringing the ratchet bell. He was driving in response to a call, and he had a right to assume that approaching street cars would be under control at street intersections. The evidence is that when within a few feet of the tracks of the defendant the driver of the wagon saw that approaching car, and whipped up his horses in an effort to cross ahead of the car. The jury had a right to take into consideration that the patrol wagon was acting in a public emergency; that it was, as is customary, being driven at a high rate of speed, and going down grade; and the fact that the driver used the whip, instead of attempting to stop the horses before they reached the track. It may have been prudent for the driver to attempt to pass over the tracks rather than to try to bring the team, with its heavy wagon, to a standstill within the few feet which intervened between the tracks and the horses at the moment of discovering the approaching car, and it was for the jury, with all the evidence before them, to determine whether the driver was exercising that reasonable degree of care which the circumstances demanded. There was a conflict of evidence, the jury have resolved the facts in favor of the plaintiff's contention, and the judgment should be sustained.

The judgment and order appealed from should be affirmed, with costs. All concur.

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(Supreme Court, Appellate Division, Second Department. October 11, 1901.) ACTION-POOR PERSON-PETITION-MINOR-GUARDIAN AD LITEM.

Under Code Civ. Proc. § 458, providing that a poor person may apply by petition to the court for leave to prosecute as a poor person, and section 459 providing that if the applicant is a minor under 14 years the petition shall be verified by the affidavit of his guardian appointed in the action, an order granting leave to sue as a poor person, issued on the petition of the proposed guardian but verified before his appointment and before the action is commenced, is unauthorized.

Appeal from special term, Kings county.

Action by William Kerrigan, Jr., an infant, by William Kerrigan his guardian ad litem, against Lewis G. Langstaff. From an order denying defendant's motion to set aside so much of the order appointing the guardian ad litem as granted leave to plaintiff to prosecute as a poor person, defendant appeals. Reversed.

Argued before GOODRICH, P. J., and WOODWARD, JENKS, HIRSCHBERG, and SEWELL, JJ.

William D. Gaillard, for appellant.
Robert Stewart, for respondent.

SEWELL, J. The plaintiff is an infant under the age of 14 years, and the application and petition were made by William Kerrigan, his father. The petition sets forth the age of the infant, and on information and belief the cause of the action intended to be brought; that the petitioner is desirous that an action be brought for the benefit and on behalf of the infant to recover damages for personal injuries from negligence; that the petitioner is willing to become guardian ad litem of said infant, and financially responsible; that petitioner desires to commence an action in behalf of the infant, "when appointed guardian ad litem, for that purpose, but cannot do so unless said infant be permitted to sue as a poor person." It also states that the infant has no property of any kind, and asks "that he may be appointed guardian ad litem for such infant, to prosecute said action, and that leave be granted to said iníant to sue as a poor person, and that the court assign to him an attorney and counsel for that purpose." Upon the petition, verified by the father on February 21, 1901, supported by a certificate of a counselor at law, to the effect that he had examined the case, and was of opinion that the infant had a good cause of action, the court to which it was presented on February 23d made an order appointing William Kerrigan, the petitioner, guardian ad litem of the infant, and further "ordered that the said infant, William Kerrigan, Jr., be, and he hereby is, granted leave to bring, through said guardian ad litem, the said action mentioned in the annexed petition, as a poor person, and Robert Stewart, attorney and counselor at law, is hereby appointed his attorney and counsel for that purpose."

Section 458 of the Code of Civil Procedure, under which the application was made, provides that "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." Section 459 provides that the petition "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."

It is plain from these provisions that only the "poor person" has the legal right to move the court for such an order unless he is an infant, and in that case no one can apply in his behalf until his guardian ad litem has been appointed. The statute is also explicit that it is the guardian ad litem appointed in the action, and not the person to be appointed such guardian, who must verify the petition by his affidavit in case the infant is under the age of 14 years. In re Byrne, I Edw. Ch. 41; Glasberg v. Railroad Co., 12 Civ. Proc. R. 50; Feier v. Railroad Co., 9 App. Div. 607, 41 N. Y. Supp. 821. If the legislature had intended that the petition should be verified before the

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appointment of a guardian, or by a person other than the one actually appointed such guardian, it is to be presumed that it would have so provided in definite and certain language. It certainly would not have provided that it "must be verified by the affidavit of his guardian appointed in said action."

It follows that the petition upon which the order permitting the plaintiff to prosecute as a poor person was not sufficient to justify the court in making the order, that the order appealed from should be reversed, and the order for leave to prosecute in forma pauperis vacated and set aside, without costs. All concur.

(64 App. Div. 416.)

CLARK V. PEMBERTON.

(Supreme Court, Appellate Division, Second Department. October 11, 1901.) REFEREE-REport-When Rendered-Death of Party-Judgment.

The referee before whom the case was tried notified defendant that it was decided in his favor. The report was dated and signed before defendant died, but not filed or delivered to his attorney until afterwards, when it was taken up by his personal representatives, and judgment entered thereon against plaintiff. Held, under Code Civ. Proc. § 763, providing that if either party to an action dies after decision, but before final judgment, the court must enter final judgment in the names of the original parties, and section 765, providing that this does not authorize the entry of judgment against a party who dies before a decision is actually rendered, the judgment was improperly entered, and should be vacated, since the report of the referee, though signed before defendant died, was not "rendered" until filed or delivered to one of the parties, as required by section 1019.

Appeal from special term, Kings county.

Action by Elizabeth A. Clark against William H. Pemberton. From an order denying plaintiff's motion to vacate the judgment entered in favor of defendant after his death, she appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and SEWELL, JJ.

L. B. Bunnell, for appellant.

G. R. Hamburger, for respondent.

GOODRICH, P. J. The action was brought to recover damages for neglect of defendant, an attorney at law, in professional relations. The action was referred to a referee, and finally submitted to him on December 22, 1900. On February 21, 1901, the referee notified the defendant that he had decided in his favor. The report, however, is dated on the 25th. The defendant died March 12th. The report was not filed or delivered to the defendant's attorney till April 25, 1901, when it was taken up by the personal representatives of the deceased, and a judgment was entered thereon against the plaintiff on June 15th. The plaintiff moved to set aside the judgment. The court denied the motion, and the plaintiff appeals.

* *

The Code of Civil Procedure (section 763) provides that "if either party to an action dies, after a verdict, report, or decision, but before final judgment is entered, the court must en er

final judgment, in the names of the original parties"; and section 765 provides that this "does not authorize the entry of a judgment against a party, who dies before a verdict, report, or decision is actually rendered against him."

It is evident that the appeal turns upon the question whether the signing of a referee's report without filing or delivery to one of the parties constitutes a "rendering" of such report. In Little v. Lynch, 99 N. Y. 112, I N. E. 312, the court, referring to section 1019, providing that a referee's report "must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause was finally submitted," held that a tender of the report within the time limited was not equivalent to delivery, within the meaning of that section. I can discover no difference in the effect of the different language used in section 1019 and sections 763 and 765. There is no verdict in an action until it is announced in open court and entered. There is no decision until it is entered or filed. There is no report of a referee until it is filed or is delivered to the attorney of one of the parties. The signing of a report is not equivalent to a filing or delivery. It follows that there was no report rendered in the present action until after the death of the defendant, and that there was no authority for the entry of a judgment against the plaintiff in the name of the original parties. The respondent's counsel cites the case of Craig v. Craig, 66 Hun, 452, 21 N. Y. Supp. 241, decided by the old general term of the First department, but we cannot agree with the construction placed by that court upon the case of Little v. Lynch, so far as it conflicts with the views we have expressed.

The order should be reversed, and the motion to vacate the judgment should be granted.

Order reversed, with $10 costs and disbursements, and motion to vacate Judgment granted. All concur.

(64 App. Div. 424.)

EADIE v. WALDRON et al.

(Supreme Court, Appellate Division, Second Department. October 11, 1901.) MECHANICS' LIENS-MUNICIPAL COURT-JURISDICTION.

Under Code Civ. Proc. §§ 3404-3410. providing a form of procedure in actions to foreclose mechanics' liens in courts not of record, the municipal court of the city of New York has jurisdiction of such an action. Goodrich, P. J., dissenting.

Appeal from municipal court, borough of Brooklyn, Second district.

Action by Thomas D. Eadie against Sophronia Waldron and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

Horace G. Lansing, for appellant.
Charles S. Simpkins, for respondents.

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WOODWARD, J. This action was brought to foreclose a mechanic's lien under the provisions of section 3404 of the Code of Civil Procedure, and the plaintiff's evidence established the fact that there was a sum of money due to him for services rendered upon the premises. One of the defendants concedes that the sum was about $50, while the claim of the plaintiff is for $68.50. While there is some question whether the defendant Sophronia Waldron is the present owner of the premises, there does not appear to be any doubt that she is the owner of record of the property, and that she has a present equity in the same. The case was heard without a jury, resulting in a judgment dismissing plaintiff's complaint; but, as the learned court made no memoranda of the reasons which prompted this disposition of the case, we are unable to account for the judgment, except upon the theory that the learned court must have reached the conclusion that it was without authority to foreclose a mechanic's lien, on the ground that it was an equitable process, and therefore without the jurisdiction of the municipal court.

We are of opinion that the case of Kotzen v. Nathanson, 33 Misc. Rep. 299, 68 N. Y. Supp. 497, fully disposes of this question, and we can safely adopt the reasoning and conclusion of that case, which holds that the municipal court of the city of New York has jurisdiction to foreclose a mechanic's lien, the proceeding, as pointed out by the Code of Civil Procedure, being entirely different from that which prevails in a court of record, where the equities of all the parties are taken into consideration and disposed of in a single action. See sections 3398-3419, both inclusive, of the Code of Civil Procedure.

The judgment appealed from should be reversed, and a new trial ordered; costs to abide the result. All concur, except GOODRICH, P. J., who dissents.

(64 App. Div. 483.)

VENANZIO v. WEIR.

(Supreme Court, Appellate Division, Second Department. October 11, 1901.) SECURITY FOR COSTS-CONSTITUTIONAL LAW-CLASS LEGISLATION.

Code Civ. Proc. § 3268, declaring that a defendant may require security for costs to be given where plaintiff was either a nonresident, a foreign corporation, a person imprisoned under execution for a crime, the official assignee of certain persons, or an infant whose guardian ad litem has not given security when the action was commenced, is not .class legislation, and unconstitutional, as violating Const. U. S. Amend. 14.

Appeal from special term, Kings county.

Action by Cocco Venanzio, by his guardian ad litem, Salvatore Venanzio, against Levi C. Weir, as president of the Adams Express Company. From an order denying a motion to set aside an order requiring security for costs, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ.

Achille J. Oishei, for appellant.
Arnold W. Sherman, for respondent.

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