Church v. Fanning — 7 N.Y. St. Rep. 645

Majority

p. 645

William Church, as Overseer of the Poor of the Town of Burlington, App’lt, v. John Fanning, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed April, 1887 )

Headnote

1. Overseer of the poor—Party becoming a charge upon the town may assign chose in action to, by way of indemnity.

A parly who has become a charge upon the town may assign to an over seer of the poor a those in action to indemnify him in liis official capacity for such expenses as may be incurred by him in her behalf.

2 Same—May sde claim assigned.

The officer to whom the claim is so assigned has power to bring an action thereon

11. M. Townsend, for app’lt; L. S. Henry, for resp’t.

This is an appeal from a judgment of the supreme court dismissing the complaint, with costs, entered upon the report of a referee.

During four years prior to March, 1885, Bridget Rice had been employed by defendant at weekly wages as a domestic in defendant’s family in the town of Burlington. In this month she was taken very sick, of which sickness she died April 13, 1885. She was without property, except the amount due her from defendant, who neither paid nor properly cared for her in her sickness, and she became a legal charge upon the town of Burlington. The plaintiff, as overseer, _ legally and necessarily expended fifty-seven dollars and eighteen cents ($57.18), in caring for her during her last sickness, and in her burial. After she became chargeable to the town, she assigned to the overseer of the poor the amount due her from'defendant for the purpose of indemnifying the plaintiff, in his official capacity, so far as she could, for such expense as he might be put to in her behalf. These facts are found by the referee, and he also found that defendant was justly indebted to Bridget Rice, March 26, 1885, in the sum of $180.50, but held that the plaintiff, in his official capacity, acquired no title to the cause of action, and had not legal capacity to maintain an action for the recovery of said demand. This position cannot be maintained. It is not against public policy for a poor person suddenly taken sick and chargeable upon the public, to indemnify, so far as she is able, the public authorities from expenses incurred on her account. It is not only not against public policy, but is a meritorious transaction, to be commended, and not condemned. Had this poor person come in possession of a sum of money, or an article of property, while being cared for by the overseer, can it be doubted that if she had voluntarily transferred the money or property to the overseer for the purpose of indemnifying him, that he would have acquired title

p. 646

to the money or property in his official capacity, and would have been liable to account for it to his town? Had this debt been evidenced by the defendant’s note, and Bridget Rice had voluntarily, without fraud or undue influence, transferred it to the overseer for the purpose of indemnity, we think he could have maintained an action thereon; and so in this case, the plaintiff acquired a good title as against the defendant to this debt.

As a general rule, all public officers (though not expressly authorized by statute), have capacity to sue commensurate with their public trusts and duties. Supervisors v. Stimson, 4 Hill, 136 ; Looney v. Hughes, 26 N. Y., 516 ; People v. Supervisors, 32 id., 477.

We have no doubt that it was the duty of this officer to accept from Bridget Rice indemnification for the expenses incurred in her care, in so far as it could be fairly and justly done, and that at common law hé has a right to recover by action, a chose in action so received.

The judgment is reversed and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Boardman, J,, concur.