GAYNOR J.:
An order to prosecute in forma pauperis cannot be obtained ex parte after the action is begun (1 Paige, 39; 6 Hill, 257; 14 How. Pr., 16). It might be inferred from the report of the decision in Shearman v. Pope ( 106 N.Y. 664) that the order was obtained on notice, but reference to the record shows that not to have been so. The court either overlooked this, or else the ex parte order was deemed valid until vacated.
Let the ex parte order be vacated, and the time to give security be postponed for ten days.
Ordered accordingly.