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The undisputed facts are that the judgment creditor has never resided nor had an office for the transaction of business of any character at No. 135 Broadway, New York City, either in the boroughs of Manhattan, the Bronx, Brooklyn, Queens, or Richmond. Also that at all times since a date prior to the rendering of the judgment he has been engaged as a private banker in the borough of Manhattan, and that his business address has appeared. properly printed in the city directory, and in some cases his residence address has also appeared. The replying affidavit of the defendant in support of the motion states that, according to the best of deponent's knowledge, information, and belief, the check given by Sutherland when discounting the note upon which the judgment in question was obtained "was drawn on the North America Trust Company at Number 135 Broadway, borough of Manhattan, New York City," and, further, that the deponent gained the impression at the time of the transaction “that said Sutherland did not reside in New York City, but resided somewhere in the northern portion of New York state, but where deponent did not know, and has never known prior to the date of the answering affidavits upon this motion.” It also appears in the opposing affidavits that the name and address of the plaintiff's attorney was subscribed to the summons, and plainly printed on the cover inclosing the summons and complaint, and that the attorney's name and address have regularly appeared in the city and telephone directories since the time the judgment was rendered. It is also undisputed that the first information the plaintiff had that the defendant had been discharged of his debts in bankruptcy proceedings was when the motion papers in this application were served. Also at there is a street or highway called "Broadway" in each of the boroughs of Manhattan, the Bronx, Brooklyn, Queens, and Richmond, in the city of New York. Upon these facts it seems clear that the motion must be denied. The present bankruptcy act provides: “Sec. 7. Duties of Bankrupts.-a. The bankrupt shall
(8) pare, make oath to, and file in court,
with the petition if a voluntary bankrupt, a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors, showing their residences, if known; if unknown, that fact to be stated." Act July 1, 1898, c. 541, 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425).
From this it is quite apparent that the schedule was defective. According to the defendant's statements now made, the address of the plaintiff was unknown to him; but, instead of so stating in the schedule, as the law requires, an incorrect, as well as indefinite and unauthorized, address was inserted. If it were necessary to pass upon the point, it would also have to be held that the words, "Residence, 135 Bway.," are not a sufficient designation of any residence, being in plain violation of the rules established by the United States Supreme Court governing the form of petitions and schedules, provision therein being made as follows:
"V. Frame of Petitions. All petitions and the schedules filed therewith shall be printed or written out plainly, without abbreviation or interlineation, except where such abbreviation and interlineation may be for the purpose of reference."
and 118 New York State Reporter On behalf of the motion it is further urged that the discharge in bankruptcy cannot be collaterally attacked in this proceeding. No such attempt is made by the plaintiff. The validity and effectiveness of the discharge in general are not questioned, the only point raised being that it does not extend to this particular claim for the reasons above mentioned. In Columbia Bank v. Birkett, 174 N. Y. 112, 117, 66 N. E. 652, 653, it was said:
"I think it was intended that the decree discharging the voluntary bankrupt should be confined in its operations to the creditors who had been duly listed, and who were enabled to receive the notices which the act provides
Motion denied, with $10 costs.
(87 App. Div. 160.)
PERLMUTTER v. STERN et al. (Supreme Court, Appellate Division, First Department. October 23, 1903.) 1. INFANTS-RIGHT TO SUE AS A POOR PERSON-GUARDIAN AD LITEM-APPOINT
MENT-FINANCIAL RESPONSIBILITY OF GUARDIAN.
Where at the time of the appointment of an infant's father as his guardian ad litem he stated that he was worth the sum of $250 over and above all liabilities, which was invested in a candy business, and subject to execution, but thereafter, on the infant's motion to be permitted to sue as a poor person, the guardian testified that his circumstances had changed, and that he was not worth more than $100, and was employed as a tailor at $12 per week, all of which was necessary for the support of himself and family, and the complaint stated a good cause of action, an order granting the application to sue as a poor person was proper.
Van Brunt, P. J., dissenting.
Action by William Perlmutter, an infant, by guardian ad litem, against Aaron Stern and others. From an order granting plaintiff's motion for leave to sue as a poor person, defendants appeal. Affirmed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.
Carl S. Petrasch, for appellants.
PATTERSON, J. This is an appeal from an order allowing the infant plaintiff to sue as a poor person. Several objections are urged to the maintenance of the order. It is only necessary to consider one of them.
The father of the infant was appointed guardian ad litem, and in his petition for appointment he stated that he was worth the sum of $250 over and above all liabilities, which money was invested in a small candy business, from which he supported his family; but he added that the business was seizable under an execution. It was held in Rutkowsky v. Cohen, 74 App. Div. 415, 77 N. Y. Supp. 546, that when it is made to appear, upon an application for appointment of a guard
ian ad litem for an infant plaintiff, that the proposed guardian is worth the sum of $250, he may be compelled to comply with an order requiring security to be given for costs; and from that it would follow that the plaintiff in that case should not be allowed to sue as a poor person. Also, it was stated in Muller v. Bammann, 77 App. Div. 212, 78 N. Y. Supp. 1022, that it must be an exceptional case in which an iniant will be allowed to sue as a poor person, where his parent is the guardian, and is able to give security. We have no disposition to relax in any way the rule announced in the cases above cited. made to prevent the glaring injustice which is often sought to be perpetrated upon defendants in unmeritorious and speculative actions for alleged negligence. However, there is an exception to the rule. Where it appears that there is a meritorious cause of action alleged, or where nothing to the contrary appears, and the circumstances of the parent of the infant have changed, so that he cannot bear the expenses of an action, the court, in its discretion, may allow the suit to be continued in forma pauperis. Here the guardian ad litem swears that at the time this motion was made his circumstances had changed. He swears that he is now not worth the sum of $100 besides household furniture and wearing apparel necessary for himself and family ; that he is employed as a tailor, and earns about $12 per week, all of which is necessary for the support of himself and family. The court below was doubtless impressed with the truth of this statement. It was satisfied, from the averments of the petition, that a good cause of action existed; extracts from the complaint being incorporated in the petition upon which the order was granted.
We see no reason for interfering with the discretion of the court below as exercised in this particular case.
The order should be affirmed, with $10 costs and disbursements.
O'BRIEN and HATCH, JJ., concur. LAUGHLIN, J., concurs in result.
VAN BRUNT, P. J. I dissent from the conclusion arrived at by the court upon this appeal. It seems to me that by the decision which it proposes to make the court is setting its stamp of approval upon the fraud which was practiced upon the court at the time that this petitioner was appointed guardian ad litem. On the 22d day of January, 1903, the petitioner was appointed guardian ad litem of an infant under the age of 14 years, and in order to obtain such appointment he must have presented proof to the court, pursuant to the requirements of rule 49 of the general rules of practice, that he was of sufficient ability to answer to the infant for any damage which might be suistained by his negligence or misconduct in the defense or prosecution of the suit. On the 30th of March, 1903, an order was entered requiring the plaintiff to file security for costs in the sum of $250. On the 6th of April, 1903, an order to show cause was obtained by the plaintiff why the order for security should not be vacated, and plaintiff allowed to sue as a poor person; and in the petition in support of the motion the petitioner swore that he was worth the sum of $250 over and above all his liabilities, which money was invested in a small
and 118 New York State Reporter candy business, and from which the petitioner supports his family, but that said business is seizable under an execution, etc. This motion of the petitioner having been denied, he renewed his motion, making an affidavit, verified on the 25th day of April, 1903, in which he swears that he is not worth the sum of $100 besides household furniture and wearing apparel necessary for himself and family; that he is employed as a tailor, and earns about $12 a week, all of which is necessary for the support of himself and family, and he is further unable to prosecute this action, unless he is admitted to do so as a poor person. Now it is perfectly apparent that in these affidavits the petitioner has sworn to what was manifestly untrue. In his affidavit of April 6th, which was filed with the order to show cause on April 15th, he swears that he is worth $250 over and above all his debts and liabilities, and that he is engaged in the candy business; and on the 25th of April he swears that he is not worth $100, and is a poor tailor. It it perfectly evident from these facts that the petitioner was willing to swear to anything that he thought was necessary to secure the order for which he was applying. It is apparent that the appointment of such a person, if his last affidavit is true, was entirely improper, and that the statements which he must have made in his application to be appointed guardian, that he was of sufficient ability to answer to the infant for any damage, etc., must have been untrue. So his statements on the 15th of April that he was worth $250 over and above all his debts and liabilities, and that he was engaged in the candy business, must have been equally false, if the statements contained in the last petition, that he is not worth $100, and is a poor tailor, are to be taken as true. And yet the court allows such a person, after having perpetrated this fraud upon the court, to sue as a poor person. Certainly this is giving fraud and misrepresentation and falsehood a reward.
The order should be reversed.
(87 App. Div. 104.)
LEONARD v. DONOGHUE. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) 1. ANIMALS-INJURIES TO PERSONS-Dogs-VICIOUSNESS-PRESUMPTION.
In an action for injuries to a person from the bite of a dog, it cannot be presumed, from the fact that the owner allowed him to be at large in a highway, where plaintiff was bitten, that the owner knew that the dog was vicious. Appeal from City Court of Yonkers.
Action by Julia Leonard, by David Leonard, her guardian ad litem, against Francis X. Donoghue. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial on the minutes, he appeals. Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.
11. See Animals, vol. 2, Cent. Dig. & 262.
James M. Hunt (F. X. Donoghue, on the brief), for appellant.
WOODWARD, J. This action is brought to recover damages for personal injuries; the plaintiff, a girl of 16 years, alleging that she was bitten by a dog owned or harbored by Francis X. Donoghue. While it appears to us that the identity of the dog, as well as other features of the evidence, is characterized by vagueness, we should be disposed to affirm the judgment, were it not for an error in the charge of the learned court. There was some evidence that a dog—perhaps the same dog which is alleged to have bitten the plaintiff-had bitten two other persons prior to the time that the plaintiff was injured, and a case was presented for the jury to determine whether the defendant had notice of the vicious tendencies of the dog. In submitting the case to the jury, however, the learned court, after presuming what had not been proven—that the attack was made in a public highwaysaid:
“If this dog was running at large on the public highway when this girl was bitten, providing you so find, it does away with the necessity of proving actual knowledge of the vicious tendency and disposition of the dog, for he is chargeable with the vicious tendency and disposition of the dog, if the dog is running at large on the public highway.”
This is undoubtedly the rule applied to wild animals, such as bears, wolves, panthers, lions, etc.—animals which are by nature wild and vicious—but no authority which we have been able to discover holds that domestic animals, such as horses, dogs, oxen, etc., are presumed to be vicious, and therefore dangerous to the community when upon the public highways. The rule is stated in Quilty v. Battie, 135 N. Y. 201, 204, 32 N. É. 47, 17 L. R. A. 521 (citing Anderson on Torts), that, “as soon as such an animal is known to be mischievous, it is the duty of the person whose premises it frequents to send it away or cause it to be destroyed,” and that a "vicious domestic animal, if permitted to run at large, is a nuisance, and a person who knowingly keeps or harbors it, and thus affords it a place of refuge and protection, is liable for the maintenance of a nuisance, and for all the damages directly resulting from it.” But it is nowhere suggested that a dog running at large may be presumed to be vicious; the liability depends upon the owner or harborer keeping the dog with knowledge of his faults; and in Lynch v. McNally, 73 N. Y. 347, 350, it was said that "ordinary familiarities with a dog running loose can scarcely be called negligence in any degree. They are not acts from which any bad consequences would naturally follow-certainly not from a peaceful dog, which, it may be presumed, every dog at large is." x It was suggested in the case of Hahnke v. Friederich, 140 N. Y. 224, 227, 35 N. E. 487, that, "when a person keeps a dog for the purpose of guarding his property against trespassers or criminals, it is not unreasonable to infer knowledge on his part of the propensity of the dog to attack and bite mankind, and negligence in allowing him to be at large”; but there was no evidence in this case that the dog was used as a watchdog, and, if there had been, it would not relieve the charge of error, which directed the jury that it might infer the vicious tendency