Hand v. Equitable Life Assurance Society of United States

Steuer, J.

Plaintiff is the assignee of the beneficiary of a life insurance policy and brings this suit upon the policy. A previous motion for different relief was appealed to the Appellate Division, resulting in a decision adverse to the plaintiff and the imposition of costs. (251 App. Div. 321.) These costs have not been paid. This motion is for leave to sue as a poor person. The opposition is that plaintiff is barred from making any application in the action because of the failure to pay costs. (Civ. Prac. Act, § 1520.) It is true that an application of this character may be made at any stage of the action. (Civ. Prac. Act, § 198-a.) This permission is not to be construed as an exception to the stay which operates by virtue of section 1520. The Legislature has specifically provided that the failure to pay costs in a previous action is not a bar to the relief herein sought. (Civ. Prac. Act, § 197.) The failure to include the instant action in the exemption leads to the conclusion that the Legislature did not intend that the permission should extend to one who was already in default as to costs incurred in the same action, and this has been specifically held. (Schechter v. Lichtenstein, 223 App. Div. 60.) This determination makes it unnecessary to consider the other ground advanced by the defendant, namely, that leave should not be granted to an assignee whose assignor would not be in a position to apply for such relief. Motion denied.