¶1This is an appeal from an order denying; the motion for leave to sue as- a poor person.
¶2The- motion on behalf of the plaintiff is: founded on the plaintiff’s petition, the pleadings (complaint and answer), the certificate/ of the plaintiff’s attorney-to the effect-that, he- examined the case and that the plaintiff has- a good cause of action and is opposed by the- affidavit; of William H. Hamilton,, one of the defendant’s at-tQrneys herein. . •
¶3The moving, papers comply with the requirements of the ,Code, sections 458, 459. ' . „ . .
¶4Code, section 46.0-,. ordains:•“ That, the eourt.may (which means must) make the order if satisfied of the truth of the facts alleged in the petition and that the applicant has a good cause of action.”
¶5The truth of the facts set up in the petition are not controverted.
¶6The complaint.sets up a good cause of action. It alleges facts which, if established at the trial, will entitle the plaintiff to recover.
¶7*569The plaintiff need not go into the merits of the case nor prove his right to recover. McNamara v. Nolan, 13 Misc. Rep. 76.
¶8The truth of the facts alleged in the petition and the sufficiency of the plaintiff’s cause of action, can be controverted by affidavits only.
¶9The answer is not available for that purpose, because that createthe issues merely. Beyer v. Clark, 29 Abb. N. C. 338.
¶10The only opposing affidavit on this motion is the one of Hamilton,
¶11It does not controvert the truth of the facts contained in the petition nor the sufficiency of the plaintiff’s cause of action. It sets, up three affirmative, defenses, to-wit: Payment, accord and satisfaction and' a prior adjudication, which the defendant must establish on the trial by competent proof according to the rules of evidence.
¶12Section 458 of the Code enacts: “ That a poor person may apply to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person;”
¶13This means, before or during the pendency of the action. There is no other' limitation prescribed.
¶14The motion was made soon after the issue was joined.
¶15Defendant’s point of laches, is of no merit, Shapiro v. Burns, 7 Misc. Rep. 418.
¶16The plaintiff, having complied with the statutory, conditions, was entitled to have his motion granted as a matter of right; and, therefore, the order appealed from is reversed, with the costs of this appeal, and the motion granted.
¶17Order appealed from reversed, with costs, and motion, for leave to prosecute as a poor person granted.
¶18Goulak and O’Dwyer, JJ., concur.
¶19Order reversed, with costs, and motion granted.