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 fourteen 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 Buies of Practice, that he was of sufficient ability to answer to the infant for any damage which might be sustained 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 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 ón 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.
Row it is perfectly apparent that in these affidavits the petitioner has sworn to what was manifestly untrue. In his affidavit of April sixth, which was filed with the order to show, cause on April *163.fifteenth, 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 twenty-fifth of April he swears that he is not worth $100 and is a poor tailor. It is 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 fifteenth 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.
Order affirmed, with ten dollars costs and disbursements.