Nuns of the Order of St. Dominick v. Long Island City — 55 N.Y. Sup. Ct. 306

Majority

p. 306

THE NUNS OF THE ORDER OF ST. DOMINICK, Plaintiff, v. LONG ISLAND CITY, Defendant.

Headnote

Children between two and sixteen yea/rs cannot be sent to a county poor-house — an incorporated, asylnvm may recoves'for the support of such children, when it has been furnished undes' writtenorders of the overseer of the poor — 1884, chap. 438, sec. 2.

This action was brought by the plaintiff, a corporation organized under the laws of this State for the care, education and support of poor orphan children, to recover the amount due it for supporting certain children between the ages of two and sixteen years, who were residents of Long Island city, and whom

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it liad received, cared for and supported, on the authority of written orders given hy the overseer of the poor of the defendant city.

Held, that the plaintiff was entitled to recover, as it had acted under the direction of an officer who had full power to give such direction, and who was compelled hy law to furnish the support for such children outside of the poorhouse and in an incorporated orphan asylum.

That, as the relief of the children was permanent and not temporary, the ten dollar limitation imposed hy section 42 of 2 Revised Statutes (7th ed., p. 1861), did not apply to them.

Motion for judgment by tbe plaintiff, upon a verdict directed in its favor by tbe court, at tbe Kings County Circuit, subject to tbe ■opinion of tbe court at General Term.

Jos. A. Burr, Jr., for tbe plaintiff.

W. J. Foster, for tbe defendant.

Tbe case does not disclose whether or not tbe distinction between town and county poor has been abolished by a vote of tbe supervisors. It does appear that there is a county poor-house, but no orphan •■asylum. Tbe plaintiffs are a corporation organized under tbe laws of tbe State for tbe care, education and support of poor orphan •children. Tbe overseer of tbe poor of tbe defendant, by a written order, committed certain children between tbe ages of two and sixteen years, who were residents of Long Island City. Tbe plaintiff received these children and cared for them and supported them on the authority of tbe overseer’s order and upon tbe credit of tbe ■defendant. The sole question is, bad tbe overseer such power? Tbe town is charged with tbe support of tbe poor when there is no action taken by tbe supervisors to abolish tbe distinction between town and county poor. (3 E. S. [7th ed.], 1859, § 31.)

The city stands under tbe poor laws in tbe place of tbe town. Tbe •charter of the defendant provides for tbe office of overseer of tbe poor with tbe hke powers as are given to overseers in towns. (Chap. 461, Laws of 1871, tit. 2, § 1; tit. 11, § 1.) Tbe charter of defendant makes tbe city a town. (Title 11, § 1.-) Tbe Eevised Statutes provides that in cases where permanent relief is asked for, tbe overseer should remove tbe poor persons to tbe county poor-house (3 E. S. [7th. ed], 1861, § 39) when tbe poor person is to be supported at tbe expense of tbe town sending him. If temporary

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relief only is sought, only ten dollars a year can be expended on one poor person or family without the written sanction of one of the superintendents. (Page 1862, § 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 of 1857, the legislature conferred power on the overseer of the poor in those counties where 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 of 1884 (sec. 2), and it was made unlawful for overseers to send any child between the ages 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 “ provided for or placed in such asylum or such other institution as shall then be controlled by persons of the same religious faith as the parents of such child.”

The relief of the children was permanent and not temporary. The ten dollar 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.

Pratt, J., concurred.

Judgment for plaintiff upon the verdict, with costs.