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SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1968.NY.43742 <>; 296 N.Y.S.2d 74; 58 Misc. 2d 1045 December 4, 1968 HELEN JEFFREYS, PLAINTIFF,v.CLARENCE JEFFREYS, DEFENDANT J. Lee Rankin, Corporation Counsel (William M. Murphy of counsel), for City of New York. Harold J. Rothwax, Stephen Wizner, Lee A. Albert and Nancy Duff Levy for plaintiff. Nathan R. Sobel, J. Author: Sobel

Nathan R. Sobel, J.

Author: Sobel

 Helen Jeffreys is suing her husband of 14 years for divorce based on abandonment of this plaintiff and their nine children.

Living on public assistance and not possessing any income or resources "to pay the costs, fees and expenses necessary to prosecute * * * the action" (CPLR 1101) she applied for and obtained leave to prosecute as a poor person. Her counsel are acting without compensation under the Legal Services Program of the Office of Economic Opportunity.*fn1

Diligent efforts to ascertain the present whereabouts of her husband having proved fruitless, plaintiff applied for and obtained from another Judge an order permitting service by publication (CPLR 308, subd. 4; 316).

On August 9, 1968, this court upon consent of the city entered an order directing that the "expense" of publication amounting to about $300 be paid by the city. My brief decision (57 Misc. 2d 416) established an important and perhaps costly precedent. For that reason, the city has asked leave to withdraw its consent and to relitigate the issue. The city understandably desires authorization which can only be had upon a high court determination of its obligations under the poor persons statutes. Of course, that motion is granted. My decision and the opinion upon which it was based is withdrawn. I necessarily deal more fully with the issues.

There are two issues to be determined.

1. Do the poor persons statutes (CPLR 1101, 1102) require the city to pay the cost of serving a summons by publication?

2. Do the service by publication statutes (CPLR 308, subd. 4; 314; 315; 316; cf. Domestic Relations Law, § 221) invidiously discriminate against poor persons in matrimonial actions to deny them equal access to the courts under the Equal Protection clauses of the State and Federal Constitutions (N. Y. Const., art. I, § 11; U. S. Const., 14th Amdt.)?


Is the cost of publication (payable to designated newspapers) a "cost", "fee" or "expense" within the meaning of the two pertinent statutes (CPLR 1101, 1102)?

Some history is relevant. Poor persons or in forma pauperis suits were recognized at the common law even in the absence of statutory authorization. The power of the English common-law courts, independently of statute, was probably confined solely to the waiver of fees payable to ministers of justice (including Judges who were on a fee basis) and public officers (including Clerks, Constables and Sheriffs). Later statutes (see 11 Henry VII, ch. 12 [1494]; Elizabeth I, Instruction to Lord President and Council of the North, 43 Eliz. I, ch. 2 [1601]) expressly authorized "waiver" of fees and expanded by statute the common-law privileges of poor persons to include assignment of counsel and forgiveness of costs if the litigation proved unsuccessful. (Martin v. Superior Ct., 176 Cal. 289, [1917]; see, also, Note, Litigation Costs: The Hidden Barrier to the Indigent, 56 Georgetown L. J. 516, 518-520 [1968].)

New York followed the English common law as expanded by statute. The first consolidation of the scattered poor person provisions was effected under the Revised Statutes of 1828 without change. (See Report of Commrs. Appointed to Revise the Statute Laws of this State [Proposed Revision, part III, ch. VIII, 1828].) As a comprehensive statutory scheme governing civil actions only, the pertinent statutes (Rev. Stat., part III, ch. VIII, tit. 1) then read:

"Section 1. Every poor person, not being of ability to sue, who shall have a cause of action against any other, may petition the court in which such action is depending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have counsel and attorneys assigned to conduct his suit. * * *

"§ 4. Every person so admitted, may prosecute his suit without paying any fees to any officers or ministers of justice * * * and if he be non-suited, or a verdict or judgment be given against him * * * he shall not be liable for any costs in such suit."

This early statute was quite generous for our courts like the English courts operated almost exclusively on a fee basis -- fees were payable to Judges (see R. Pound, Organization of Courts, p. 156 [1940]) clerks, registers, sergeants-at-arms, criers, sheriffs, coroners and constables by the civil litigant (see Part III, ch. X, tit. III Revised Statutes [1828]).

The next recodification took place in 1876 with the adoption of the Code of Civil Procedure (L. 1876, ch. 448). The fee system had been largely abolished. The only change from the 1828 statute was the elimination of reference to fees of "ministers of justice" (Code Civ. Pro., § 461).

From the code the poor persons statutes were transferred to the Civil Practice Act (L. 1920, ch. 925) but again scattered through various parts thereof. (See Civ. Prac. Act, §§ 196-199; Rules of Civ. Prac., rules 35, 36, 37; Civ. Prac. Act., § 1455 later renumbered § 1493.)

The one significant substantive change from the earlier statutes, was made in 1936 (L. 1936, ch. 166). While theretofore stenographers' fees were "waived," i.e., transcripts were required to be furnished by the court-employed stenographers free of charge to the poor person, the new statute provided for payment for this service to the stenographers out of public funds. Thus, the largest single "expense" of civil litigation, became a public charge.

Thus matters stood when the Advisory Committee recommended that the scattered poor person's statutes be consolidated in article 11 of the CPLR, adding the new article "is merely a recodification of the present statutes and rules." (Second Preliminary Rep. of Advisory Committee on Practice and Procedure, p. 387.)

I necessarily conclude, contrary to my earlier opinion (57 Misc. 2d 416), that in view of such expressed intention, no significance can be attached to the use by the Revisors of the new terms "expenses" (CPLR 1101) and "costs and fees" (CPLR 1102, subd. [d]).

Except for the 1936 provision, supra, for the payment of the cost of transcripts to the court stenographers out of public funds, the existing statutes, in my opinion, have no different meaning than the quoted provisions of the Revised Statutes of 1828.

For poor persons in civil litigation, the existing statutes (1) permit assignment of counsel (CPLR 1102, subd. [a]; see, also, Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 1102.01); (2) waive all manner of fees payable to public officers whether destined for his own pocket or the public treasury (CPLR 1102, subd. [d]); (3) forgive payment of costs to a successful adversary (CPLR 1102, subd. [d]); and (4) provide for the payment out of public funds of free transcripts under stated circumstances (CPLR 1102, subd. [b]). (See, also, People ex rel. King v. McNeill, 30 Misc. 2d 566.)

The category of expenses payable by litigants to third persons other than public officers, commonly labelled "auxiliary expenses", the poor person's statutes do not cover. These include, in addition to publication costs, witness fees, printing expenses, expert witnesses and general investigation costs. That some of these are by statute "taxable disbursements" (CPLR, art. 83) does not of course make them payable in the first instance out of public funds on behalf of poor person litigants.

My view that our poor person's statutes do not authorize payment of such auxiliary expenses is supported by an examination of the in forma pauperis statutes in other jurisdictions. Some 34 jurisdictions, including the Federal (U. S. Code, tit. 28, § 1915), have such statutes (see Note: Proceedings in Forma Pauperis, 9 Univ. Fla. L. Rev. 65 [1956]). There is little difference in coverage. All such statutes are based on the common law as confirmed and expanded by statute (supra). However ...

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