The plaintiff’s papers are in strict accordance with the provisions of sections 458 and 459 of the Code.of Civil Procedure. She could say no more to invoke judicial action than she has said in these papers. No more could well be said.
The defendant filed no affidavits in opposition. If, therefore, her motion was properly denied, it is difficult to conceive of a case where an infant pauper may avail herself of the law which was expressly enacted for the benefit of her class. Prior to the amendment of 1891 there was a conflict of judicial opinion with regard to the right of infant paupers to sue as poor persons. In some cases it was held that where an infant sues by guardian ad litem, security for costs being a statutory right, the court had no power to destroy it by allowing the guardian to sue as a poor person. These cases *609were subsequently overruled. But it was to settle these and all other questions upon the subject, that the amendment of 1891 was enacted. -That amendment consisted of the insertion in section. 458 of the words “ whether an adult or infant,” and of the provision in section 459, that where the applicant is an infant under the age of fourteen, years, the petition must be verified by his gua/rdian appointed im, the action.
Now, as an infant, whether under or over fourteen years of age, cannot apply until a guardian ad litem is appointed (Matter of Byrne, 1 Edw. Ch. 41; Glasberg v. Dry Dock, E. B. & B. R. R. Co., 12 Civ. Proc. Rep. 50, per Patterson, J.), and as such guardian ad litem must, under the General Rides of Practice, be a competent and responsible person, the statute is practically abrogated if the competency and responsibility of the guardian constitute a complete answer to the application.
The infant here says, without a word of denial, that she has no means whatever; that she has a good cause of action against the defendant; and that she is a hired domestic in her guardian’s service. What was the court’s answer It was this — though you are an infant pauper you shall not have the benefit of the statute becáuse you have a responsible guardian. This responsible guardian you had to secure before you commenced your action. Having secured him you are no longer within the statute, or rather it is no abuse of discretion to deny your petition. This reasoning seems to be practically to nullify the amendment and to leave infant paupers .in quite as unfortunate a position as they were in before the Legislature sought to help them.
The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion for leave to sue in forma pauperis granted.
Williams and Patterson, JJ., concurred; Van Brunt, P. J., and Rumsey, J., dissented.