Nuns of Order of Saint Dominick v. Long Island City

Majority

p. 415

Nuns of the Order of St. Dominick v. Long Island City.

(Supreme Court, General Term, Second Department.

May 14, 1888.)

Headnote

Poor and Poor-Laws — Committing Children to Orphan Asylum—Liability op City.

Where a town, having taken no action to abolish the distinction between town and county poor, as provided by Banks’ Rev. St. N. Y. 1859, § 31, has become a city, with like powers for overseers of the poor as are given overseers in towns, under its charter, (chapter 461, Laws 1871, tit. 11, § 1,) under chapter 438, Laws 1884, § 2, providing that the overseers should place orphans between two and sixteen years in orphan asylums, and not in poor-houses, the city is liable where its overseers commit certain poor children between those ages to an incorporated orphan asylum, there being no county orphan asylum.

Appeal from circuit court, Kings county; Willard Bartlett, Justice.

The Nuns of the Order of Saint Dominick, a corporation, plaintiff, sued Long Island City, defendant, for board of certain pauper orphans. Judgment for plaintiff, and defendant appeals.

Jackson & Burr, for plaintiff. W. J. Foster, for defendant.

The case does not disclose whether or not the distinction between town and county poor has been abolished by a vote of the supervisors. It does appear that there is a county poor-house, but no orphan asylum. The plaintiffs are a corporation organized under the laws of the state for the care, education, and support of poor orphan children. The overseers of the poor of the defendant by written order committed certain poor children, between the ages of two and sixteen years, who were residents of Long Island City. The plaintiff received these children, and cared for them, and supported them, on the authority of the overseers’ order, and upon the credit of the defendant. The sole question is, had the overseers such power? The town is charged with the support of the poor when there is no action taken by the supervisors to abolish the distinction between town and county poor. 3 Banks’ Rev. St. 1859, § 31. The city stands under the poor-laws in the place of the town. The charter of the defendant provides for the office of overseer of the poor, witli the like powers as are given to overseers in towns. Chapter 461, Laws 1871, tit. 11, § 1. The charter of defendant makes the city a town. Title 2, c. 1. The Revised Statutes provide that, in cases where permanent relief is asked for, the overseers should remove the poor person to the county poorhouse, (Banks’ Rev. St. 1861, § 39,) when the poor person was to be supported at the expense of the town sending him. If temporary relief only was sought, only $10 a year could be expended on one poor person or family, without the written sanction of one of the superintendents. Section 42. If there was no further legislation, it would have been the duty of the overseer to have sent the children to the poor-house. By chapter 61, Laws 1852, the legislature conferred power on the overseers of the poor, in those certain cities where

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there was no county orphan asylum, to place the children in any incorporated orphan asylum in the county, at the expense of the town to which they were chargeable. The power of choice in the overseers was taken away by chapter 438, Laws 1884, § 2, and it was made unlawful for overseers to send any child between the age of two and sixteen years to any county poor-house, but made it their duty to provide for them in incorporated asylums for the care of orphans, and “provide for or place in such asylum or such other institution as shall then be conducted by persons of the same religious faith as the parents of such child.” The relief of the children was permanent, and not temporary. The $10 limitation does not apply to them. The plaintiff’s employment was made by an officer who had full power, and who was compelled to furnish the support outside of the poor-house, and in an incorporated orphan asylum. The plaintiff fills every requirement of the law, so far as is disclosed by the evidence, and the plaintiff should have judgment on the verdict, with costs.