46 Misc. 548 | New York County Courts | 1905
For six years prior to August, 1902, John W. Kelly, a person of full age, resided with his wife and infant children in the town of Camillus and supported himself and family without aid from the public. In September, 1902, Kelly moved with his family from the town of Camillus to the town of Geddes. In October, 1902, Martin L. Whittig was overseer of the poor of the town of Geddes, and his wife, Margaret E. Whittig, kept her husband’s books and made out orders and did any work connected with the office. In October or November, 1902, the wife of John W. Kelly, above mentioned, came to the office of the overseer of the poor of the town of Geddes, and, in the absence of Mr. Whittig, stated to Mrs. Whittig that her husband had gone away and left them without anything to eat; that he was on a drunk, and that they were very destitute; that he had-been gone two or three days; that her husband had a week’s pay coming from the corporation for which he worked, and that its treasurer refused to pay without an order from some one in authority. Mrs. Whittig thereupon wrote a letter to the treasurer of the corporation for which Kelly had worked, and said to Mrs. Kelly, if she did not get her husband’s wages to come back, and “that the overseer would give her an order for something.” She didn’t come back. Mrs. Kelly obtained the amount of her husband’s wages. On the day following the visit of Mrs. Kelly, Mrs. Whittig, at the request of her husband, made out and mailed the following notice to Mr. A. H. Butterfield, the overseer of the poor of the town of Camillus:
“Solvay, N. Y.,-, 189 .
“To the Overseer of the Poor for the Town of Camillus: You are hereby notified that William Kelly, a pauper, who has gained settlement in your town, to which he belongs, is in the town of Geddes, and is supported at the expense of said town, for which the undersigned is overseer. You are, therefore, required to provide for the relief and support of the said pauper.
“Martin L. Whittig, Overseer of the Poor.”
A few days later Mr. Butterfield had a conversation with the overseer of the poor of the town of Geddes, and stated “that the Kelly people belonged to his town; that Mr. Whittig should use his own judgment in how he acted with them”; but he swears
This case must be determined by what occurred in November, 1902. Section 40 of the poor law (Laws 1896, p. 149, c. 225) provides :
“Every 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.”
Section 41 provides that:
“No residence of any such poor person * * * while such person, or any member of his or her family is supported or relieved at the expense of any other town, * * * shall operate to give such poor person a settlement in the town where such actual residence may be.” People ex rel. French v. Lyke, 159 N. Y. 149, 53 N. E. 802.
So that on October 2, 1903, Kelly had obtained a settlement in the town of Geddes, unless he had during that time been supported or relieved by that town, or unless the failure of the overseer of the poor of the town of Camillus to serve a notice of contest upon the overseer of the poor of the town of Geddes prevented a settlement, or prevents the town of Camillus from making a claim that such settlement had been in fact obtained. These exceptions will be considered. The only transaction prior to October 2, 1903, upon which the town of Geddes can base a claim of having sup
Section 42 of the poor law (subdivision 4) provides as follows:
“If such poor person be in a county where the respective towns are liable to support their poor, and has gained a settlement in some town of the same county other than that in which he may then be, he shall be supported at the expense of the town or city where he may be, and the overseers shall, within ten days after the application for relief, give notice in writing to an overseer of the town to which he shall belong, requiring him to provide for the support and relief of such poor person.”
Section 43 provides:
“If, within ten days after the service of such notice, the overseer to whom the same was directed, shall not proceed to contest the allegation of the settlement of such poor person, by giving the notice hereinafter directed, he or his successors, and the town which he or they represent, shall be precluded from contesting'or denying such settlement.”
’Then follows a provision relative to giving notice of contest and the procedure to determine the questions arising thereon. It is a question whether Mrs. Kelly, within the meaning of the statute, applied for relief in November, 1902; but, assuming that she did, unless such application was followed within a reasonable time with support, a notice simply based upon such application was futile. The primary object of the statute (section 42, subd. 4) is to enable the overseer of the poor of the town where the poor person is to immediately relieve his necessities, without making the town so assisting liable by reason of such action. The provision relative to notice which may be given upon application for relief and not later than 10 days thereafter is a detail in the procedure to determine the liability of the respective towns. It provides, • on the one hand, means for the assisting town to protect itself, and at the same time protects the town where the poor person had a settlement from stale or accumulated claims. The manner of notice is one of procedure. The cause of action, the. basis of contest, the necessity for notice is the fact of actual relief furnished
It is unnecessary to pass upon the other questions, many of which were presented. For the reasons herein stated, the decision of the superintendent of the poor, from which the appeal herein was taken, is therefore reversed, with costs.
Decision of superintendent of the poor reversed, with costs.