12 N.Y.S. 338 | N.Y. Sup. Ct. | 1890
Lead Opinion
This action was prosecuted against the overseer of the poor of Amsterdam on an alleged contract made with that officer for care and at-attention rendered by plaintiff’s assignors to a transient pauper supported at the expense of the overseer of that town. The case shows that one Edward Murphy was found along the railroad track in Amsterdam, seriously injured, of which injury he subsequently died. That he was without means of support, and was taken care of by the overseer of the poor of that town. That, the overseer of the poor employed plaintiff’s assignors to nurse and care for. Murphy, which they did; one nursing during the day, and the other during the night. These nurses both swear that the overseer of the poor employed them, and agreed to pay them, or see them paid. One of these parties was employed 25 days, and the other 21 nights. They commenced service about the 24th of September, 1887. On the 8th day of October the acting overseer of the poor of Amsterdam gave to these persons orders in the following forms: “October 8th, 1887.
“Town Board: Pay to A. Van Auken, a nurse, for nursing Edward Murphy, a town charge, the amount of fifty dollars ($50.00) for twenty-five (25) days’ services, and charge the same to the town of Amsterdam.
“John M. Thatcher, Overseer of Poor.”
“October 8th, 1887.
“Mr. Daniel Martin, a nurse for Edward Murphy, let him have forty-two ($42) for twenty-one (21) days’ services, and charge the same to the town of Amsterdam. John W. Thatcher, Overseer ot the Poor.”
To each of these orders was attached an affidavit of the plaintiff, as assignee, that he was the owner of the claim, and that no part of the sura has been paid. On the trial the defendant proved, under objection by the plaintiff, by several officers constituting the board of town auditors, that the overseer of the poor had presented these bills to the town auditors, and they were disallowed by that board on the sole ground that they w'ere not proper charges against the town. Ho record of the action of these town auditors on these claims or minutes in writing of their action was made by said board.
Upon these facts the court directed a verdict for the defendant, and the plaintiff appeals.
Section 1926 of the Code of Civil Procedure enumerates certain officers who may maintain actions in their official capacity upon contracts lawfully made with them, etc., and names overseers of the poor among such officers. Section 1927 provides that “an action may be maintained against any of the . officers specified in the last section upon any cause of action which arises against them, or has accrued against their predecessors, or upon contracts made by their predecessors in their official capacity, and within the scope of . their authority.” Under this provision a party may recover upon a contract lawfully made with an overseer of the poor, or his predecessor in office. By section 3 of chapter 42 of the Laws of 1863, “the powers and duties heretofore "
The plaintiffs insist that it was error to receive the evidence of the town auditors as to their recollection of what occurred at the time it is alleged the' account or claim in question was presented to them, or their action upon the same, on the ground that if there was any legal action taken before them, and' any determination by them, it should have been reduced to writing in the form of a certificate, and filed in the town-clerk’s office, and that would have been the best evidence, and that that certificate or record should be produced, or its loss or destruction proved, before paroi testimony of the action could be received. Section 1 of chapter 172 of the Laws of 1863provides as follows:' “ The town auditors of the several towns of this state shall examine the accounts of the overseers of the poor * * * of such towns for all moneys received and distributed by them, and shall meet for the purpose of examining the same annually, in each town in this state, on Tuesday preceding the
Concurrence Opinion
I concur on first ground. If the action of auditors is not binding, it is immaterial whether it was properly proved.
Landon, J., concurs.