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.
*161The 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) that when it is made to appear upon an application for appointment of a guardian ad Utem for an infant plaintiff that the proposed guardiah 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) that it must be an exceptional case in which an infant 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. It was 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 expense 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.
*162The order should be affirmed, with ten dollars costs and-disbursements,
O’Brien and Hatch, JJ., concurred; Lahghlin, J., concurred in result; Van Brunt, P. J., dissented.