| N.Y. Sup. Ct. | Oct 15, 1840
This action is given by statute ; and the principle upon which it is to be maintained will depend on a construction of several sections of the act under which the suit is brought.
By the 63d section of 1 R. S. 633, any person who shall send, carry, transport, remove or bring, or who shall cause to be sent, carried, transported, brought or removed, any poor or indigent person, from any city, town, or county to any other city, town or county, without legal authority, and there leave such poor person with intent to make any such city, town or county, to which the removal shall be made, chargeable, ¿-c. or who shall entice any such poor person to remove with such intent, shall forfeit fifty dollars. &c. By the 64th section, the pauper so removed, brought or enticed, shall be maintained by the superintendents of the county where he may be ; they shall give notice to the overseers *of the poor of [ *344 ] the town from which he was brought or enticed if such town be liable for his support; if there be no town in the county from which he was brought liable to his support, then the notice is to be given to the superintendents of the poor of such county, informing them of such improper removed, and requiring them to take charge of the pauper. By the 65th section, the superintendents or overseers to whom notice is given shall within thirty days take and remove the pauper, &c. or within that time notify the superintendents giving the notice, that they deny the allegation of such improper enticing or removal, &c. By the 67th section, upon such notice of denial the superintendents shall within three months commence a suit against the overseers of the poor of the town, or the county superintendents or their successors, for the expenses incurred in the support of such pauper, &c.
From an attentive consideration of these provisions it appears obvious to me, that a removal of the pauper which will charge the county with the expenses of his maintenance, must be such as would subject the person concerned in it to the penalties imposed by the 63d section of the act. This is clearly the removal referred to throughout the several provisions on the subject ; and which the defendants were required to deny. The plaintiffs are to give notice to the superintendents of the county from which the pauper was brought or enticed, informing them of such improper removal, and they are to deny the allegation of such improper enticing or removal. This is the preliminary issue raised between the parties before the commencement of the suit.
The ground taken by the plaintiffs supposes that the legislature intended to prohibit a destitute person, or one who happened to be disabled, while temporarily residing in one county, from returning to his family and friends residing in another, though he might choose to do so of his own mere motion ; or as a matter of course, to charge the county from which he thus re-: moved with his support. This seems to me a forced and unreasonable con
Even where a person brings a pauper from any place out of the state into'a county within it, he is neither subject to the penalty, or to the maintenance of the pauper, as imposed by the 64th section, without the existence of an intent to charge the county.
I am of opinion, therefore, that the learned judge erred, and that a new trial must be granted.