Opinion
July 12, 1910.
Christopher J. Heffernan, for the appellant.
Herbert L. Smith, for the respondent.
The principal question presented upon this appeal is whether the support of Anna Malvina Lively, a poor person, is chargeable to the county of Onondaga or the city of Amsterdam. She is a married woman and has five small children. For several years prior to February, 1907, she resided in the city of Amsterdam. Her husband lived with her there until September 11, 1906. On that day he left his family and went to Cincinnati, O.; lived there a short time and then went to Marion, Ind. He did not send for his wife and children as he had promised to do. He next met her on the 5th of February, 1907, in Syracuse, and they agreed to live together again. She returned to Amsterdam, got her children and belongings and went back to Syracuse on February 13, 1907. Her husband lived with her and maintained her and the children there until May 23, 1907, when he again abandoned her, without means of support. She has not heard from him since that time. After he left her the first time she did what she could to maintain herself and the children, doing washing and sewing, but was unable to do so without assistance. On November 3, 1906, she applied to the overseer of the poor of the city of Amsterdam for aid, which was given her, and she received aid from him thereafter from time to time until just before going to Syracuse, the last being orders for groceries and coal, received January 4, 1907.
Two days after her husband abandoned her in Syracuse she applied to the overseer of the poor of the city of Syracuse for assistance, receiving an order for groceries, chargeable to the county of Onondaga, amounting to two dollars; and from that day until the commencement of the action relief was furnished to her by the county of Onondaga at various times, amounting in all to the sum of fifty dollars.
On the 28th day of May, 1907, the superintendent of the poor of Onondaga county served notice upon the overseer of the poor of the city of Amsterdam, in conformity with the statute, notifying him that Anna Malvina Lively, a poor person, had been brought or had come or strayed into the county of Onondaga, without legal authority, and applied for public relief, and was then being maintained by the county, and that the city of Amsterdam was liable for her support, and requiring the overseer of the poor of the city of Amsterdam to take charge of her and remove her forthwith, and support her.
On May 29, 1907, the overseer of the poor served a notice on the superintendent denying all liability of the city of Amsterdam for her support.
The statutes relating to the poor have been consolidated recently (Consol. Laws, chap. 42; Laws of 1909, chap. 46), but no substantial change has been made, so far as I can discover, in any provision affecting this controversy. A poor person is one who is unable to maintain himself. (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], § 2.) A person of full age, who shall be a resident and inhabitant of any town or city for one year, shall be deemed settled in such town or city and shall so remain until he shall have gained a like settlement in some other town or city in this State, or shall remove from this State and shall remain therefrom one year. (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], § 40.) Section 51 of the act provides, among other things, that a poor person who shall of his own accord come or stray from one city, town or county into any other city, town or county not legally chargeable with his support, shall be maintained by the county superintendents of the county where he may be, and provides for the giving of a notice such as was given in this case. The next section (§ 52) provides that after the service of the notice the county superintendents or overseers to whom the notice is given may take and remove such poor person to their county, town or city and there support him, and pay the expense of such notice and of the support of such person; or within thirty days after receiving the notice they shall, by a written instrument under their hands, notify the county superintendents from whom such notice was received, that they deny liability for the support of such poor person.
Unquestionably, Mrs. Lively became a poor person in the city of Amsterdam, and was such when she left there and went to the city of Syracuse. At that time she had a settlement as a poor person in the former city, and she could gain no settlement in any other town or city while she was being supported or relieved at the expense of the city in which she had a settlement. (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], §§ 40, 41; People ex rel. French v. Lyke, 159 N.Y. 149.)
For a time the Poor Law provided that a person who has gained a settlement in a town or city loses the same by a continuous residence elsewhere of one year, doing away, as Judge VANN says in People ex rel. May v. Maynard ( 160 N.Y. 453, 460), "with the legal fiction of a residence presumed to continue long after it has in fact ceased and thus simplifies the law." The act was passed in 1897 (Gen. Laws, chap. 27 [Laws of 1896, chap. 225], § 57, added by Laws of 1897, chap. 203), but was repealed in 1900 (Laws of 1900, chap. 345) and is not embodied in the present Poor Law (Consol. Laws, chap. 42; Laws of 1909, chap. 46).
While Mrs. Lively and her children were supported by her husband after she went to Syracuse to live, that continued only for three or four months — not long enough to gain a settlement there. So that within a day or two after he abandoned his wife the second time she was again in need, and it was the duty of the superintendent of the poor of the county in which she then was to furnish her the necessary relief. He could not refrain from so doing because she had a settlement in the city of Amsterdam; nor could he against her will remove her from his county to the city of Amsterdam. (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], §§ 42, 51.) Even if, as between the city of Syracuse, where she then was, and the county of Onondaga, the expense in the first instance was chargeable to the county (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], § 42), I think the county had a remedy over against the city of Amsterdam for the expense so incurred.
That brings me to the next question urged by the appellant as a ground for reversal. It is contended that under the provisions of the city charter of Amsterdam a statement of the plaintiff's claim should have been presented to the common council of the city, and that such presentation is a condition precedent to the maintenance of the action. Section 31 of the charter of the city of Amsterdam (Laws of 1885, chap. 131) requires that "all accounts and claims against the said city * * *" shall be presented to the common council and referred to a standing committee of said board for examination, who shall report thereon; that the common council shall hear, examine and determine the same as a board of town auditors, having the same powers and duties as town auditors. Specific provision is also made for the presentation of claims for injuries arising out of defective highways, which claims must be presented within the time therein stated, and no action shall be commenced thereon until three months after the presentation of the claim.
I agree with counsel for the appellant that the three months' period refers only to claims of the latter description, and not to accounts and claims generally against the city. But, as it seems to me, the provisions of the charter referred to do not apply at all to claims or causes of action such as this. The overseer of the poor has the exclusive care and management of the poor of the city, and his duties and liabilities in general are the same as an overseer of the poor of a town. He is required to report to the common council, in detail, all appropriations, expenditures, temporary relief and allowances made by him during the month preceding. His bond includes a correct accounting of any funds or moneys to be received and disbursed by him. While his duties are more specifically defined in some respects and are perhaps to some extent more comprehensive, his duties and obligations as regards the proceedings connected with and caring for a poor person such as the one under consideration, are substantially the same as of overseers of the poor in towns. He receives and disburses moneys and upon him is imposed the duty of determining the question of liability for and the payment of claims like this. (Laws of 1885, chap. 131, § 53, as amd. by Laws of 1887, chap. 254, and Laws of 1903, chap. 188.)
After the service of the notice upon the overseer he could take and remove the poor person to his city and support her; or within thirty days notify the county superintendent of the poor from whom he had received the notice, denying liability, as was done in this case. (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], § 52.) Upon the service of such notice of denial the county superintendent was required within three months to commence an action in the name of his county against the city for the expenses incurred in the support of such poor person and prosecute the same, or in case of failure to do so, be precluded from all claim against the city. (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], § 54.)
Reading together the provisions of the defendant's charter and the provisions of the Poor Law, it seems clear to me that the duties of determining the liability and the justness of the plaintiff's claim devolved upon the overseer of the poor of the city of Amsterdam, and not upon the common council; that the presentation of the claim to the common council under such circumstances would have been entirely nugatory, in view of the determination of the overseer of the poor that no liability existed against the city.
I think the case was correctly decided and that the judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.