Stilwell v. Coons — 33 N.Y. St. Rep. 262

Majority

p. 262

George H. Stilwell, Superintendent of the Poor of Schuyler County, App’lt, v. John F. Coons, Overseer of the Poor of the Town of Barrington, Resp’t.^[1]

(Court of Appeals, Second Division,

Filed October 7, 1890.)

Headnote

Poob—Action fob stjffobt of paufeb impeofeb:ly behaved—Denial of

LIABILITY.

The denial of liability for support of a pauper alleged to have been improperly removed from one county to another need not follow the language of § 60 of 1 R. S., 629. An unequivocal denial of the liability asserted in the notice is sufficient to set running the thirty days statute of limitation.

Appeal from a judgment of the general term of the fifth department, affirming a judgment which dismissed the complaint and was entered on the report of a referee.

Cole Brothers, for app’lt; M. A. Leary, for resp’t.

When a poor person removes, or is removed from a town in one county to a town not chargeable with his support in another county, and is there necessarily relieved by the overseer of the poor of the town, the expense incurred and the burden of thereafter maintaining the person is, as between that town and its county, a charge on the county, provided the overseer gives the superintendent of the poor of his county notice of the circumstances of the case, as provided by the statute. In such a case the statute provides that if, in the judgment of the superintendent, the town whence the person came is liable for the support of the pauper, he may notify the overseer of the poor of that town of his improper removal and require the overseer to forthwith take charge of him. The statute, 1 R. S., 629, § 60, requires the overseer receiving the notice to remove the pauper to his town within thirty days after receiving the notice, and there provide for Ms support, unless, within the same time, he serves on the superintendent from whom the notice was received a written denial, under his hand, that the person was improperly removed from his town, or that his town is liable for the support of the pauper. Unless the superintendent on whom the denial of liability is served begins, within three months after its service, an action against the overseer to recover the expense incurred in maintaining the pauper, the superintendent and his successor in office and his county is forever precluded from recovering from the town, or any of its officers, any expenses that may have been, or may thereafter be incurred in the support of the pauper. 1 R. S., 629,

p. 263

§ 60. In this case, Peter Huff, the alleged pauper, had resided for two or three years before March 15, 1886, in the town of Barrington, in the county of .Yates, but at the daje named he removed from that town to the town of Tyrone, in the county of Schuyler. At this time Huff had no property except his clothing and about twenty-five dollars in money. He was about seventy-five years old, and for four years had been afflicted with asthma, and unable to work, but he had never been the recipient of public or private charity. After going to Tyrone he expended about half of his money for clothing and paid for his board until April 15, 1886, when his money and property were exhausted, and, being unable to labor, he applied for aid to the overseer of the poor of Tyrone, who, after giving temporary relief, gave the superintendent of the poor of his county timely notice of the circumstances of the case. The superintendent, believing that the removal of Huff from Barrington to Tyrone was prohibited by §§ 58 and 59 of 1 R. S., 628, mailed, April 24, 1886, to John F. Coons, the overseer of the poor of the town of Barrington, this notice:

“ Schuyler County, ss. :

‘.‘To fhe Overseer of the Poor of the Town of Barrington, County of Yates:

“You are hereby notified that Peter Huff, a pauper, who has gained a settlement in your town, to which he belongs, has come into the county of Schuyler, and now is in the town of Tyrone, in said county of Schuyler, for which the undersigned is superintendent of the poor. You are therefore, required to provide for the relief and support of said pauper.

“ Given under my hand this 24th day of April, 1886.

“ George H. Stilwell,

“ Sup't of Poor."

On May 13, 1886, the superintendent received this answer:

“ George H. Stilwell. Barrington, May 13, ’86.

Dear Sir.—I received your notice that Peter Huff, a pauper, was in your county. Peter Huff has never been a pauper in this town or county; he had money to pay his way until he applied to you for help. The law passed in June, 1885, says any pauper moving from one county to another. How as Huff was not a pauper when he moved he cannot legally hold a settlement in this town.

“ Hoping you will help him soon, as he is entirely destitute of means of support, I remain, truly yours,

“John F. Coons,

“ Overseer of Poor."

The notice and answer were given pursuant to §§ 59 and 60 of title 1 of chap. 20 of part 1 of the Revised Statutes as amended by chap. 546, Laws 1885.

It may be well to call attention to the fact that since the circumstances out of which this action arose happened, §§ 59 and 60, above referred to, have been greatly changed by' chito. 486, of the Laws of 1888.

p. 264

This action, to recover the expenses incurred in maintaining the pauper, was begun, Hovember 24, 1886, more than six months after the service t|pan the plaintiff, by the defendant, of the denial of liability. The defendant, among other defenses, interposed the statute of limitations above referred to, as a defense, which was held to be valid by the courts below.

The plaintiff insists that the failure of the defendant to (in the language of § 60), “ deny the allegation of such improper enticing or removal, or that their (his) town is liable for the support of such pauper,” renders the denial of liability above quoted ineffectual to set the time running in which an action must be brought, and moreover, that by reason of such omission the defendant is precluded, by the sixty-first section, from contesting the liability of his town.

The denial of liability need not follow the language of the section above quoted, but it is quite sufficient if it contains an unequivocal denial of the liability asserted in the notice. This, the denial served plainly did, and the courts below correctly held the action barred by the statute. The- plaintiff having actually received the denial, it was a sufficient service. Stilwell, as Superintendent, v. Kennedy, as Overseer, 51 Hun, 114 ; 24 N. Y. State Rep., 140. There was no waiver of the effect of the denial in the conversation had between the parties in September following its service. The defendant then, as in his denial, insisted that his town was not liable.

The judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ"., not sitting.