Minklaer v. Rockfeller

6 Cow. 276 | N.Y. Sup. Ct. | 1826

Curia, per

Sutherland, J.

The bill of exceptions presents the question, whether an action on the case wdll lie against overseers of the poor, for omitting or refusing to take the necessary measures to provide for paupers, in favor of an individual, who, from motives of humanity, furnishes them with the sustenance and attention, which their situation absolutely requires.

The declaration does not aver that the defendants acted fraudulently or maliciously ; and there is no evidence that their neglect was wilful, and without reasonable excuse, except what is to be inferred from their admission, that 3PGUI and bis wife were paupers, legally settled in the town of Clermont. The evidence before the justice consisted principally of the admissions of the parties; and' j.iis return is not sufficiently full and explicit, to show the bearing and pertinency of much of the evidence. But I think it is fairly to be inferred from the whole evidence, that the defendants did not intend to admit that the town of Clermont was bound to maintain these paupers. When the notice was served on them, they said they could do nothing about it, until they saw Mr. Edward, P. Livingston ; and the return states that the defendants introduced and proved two written agreements between E. P. Livingston and his wife, and Adam Minklaer, junior; and also a bill of sale or agreement between John M ’ Gill and the plaintiff. The plaintiff introduced and proved three receipts given by E. P. Livingston; two to the plaintiff, and one to John M’ Gill. The defendants proved an assignment or surrender, under seal, from John M’ Gill to E. P Livingston.

From this evidence, it is probable, that M'Gill had been a slave ; and that, in the opinion of the overseers, it was doubtful whether he had been so manumitted as to exonerate his master from the responsibility of maintaining him. This, however, is mere conjecture ; and none of this evidence was given in the court of common pleas. All the evidence there, consisted in proof of the notice given to the defendants ; their declaration that they could do nothing about it until they saw Mr. Livingston ; their admission that they were overseers of the poor of Clermont ; that M ’ GUI and his wife were legally settled in Clermont j and proof that they were unable to maintain themselves ; that the plaintiff had provided for, and kept them; and the value of the services, &c. rendered by him.

This evidence was clearly insufficient to entitle the plaintiff to recover. The defendants were not bound, nor had they any authority to make provision for the paupers in the first instance. All they could do, was, to apply to a justice of the peace, and, together with him, inquire into the state and circumstances of the persons asking relief; and if it should appear that they were in such indigent circumstances as to require the relief sought, then the justice was bound to give an order in writing to provide for them, Until such order was given, the defendants had no authority to make any provision.

If they were guilty of any omission of duty, it was in n°t making the application to a justice, and, together with him, making the necessary inquiry.

But, for aught that appears, all this may have been done; and the justice may have refused an order. When the plaintiff seeks to charge the defendants as public officers, for an omission of duty, he is bound to prove it affirmatively and clearly. (11 John. 114. 2 Mass. Rep. 243. 3 Caines, 317, per Livingston, J.) That, I think, in this instance, has not been done.

But, admitting that the defendants refused to take the neeessary measures to obtain the order, are they responsible to the plaintiff, in an action on the case, for the trouble and expense of supporting and taking care of the paupers while they remained in his house ?

I do not see on what legal principle the action can be sustained. The plaintiff was under no legal obligation to take care of the paupers, it was a commendable humane act, undoubtedly : but it must be considered voluntary on his part, and cannot lay the foundation of an action against the overseers of the poor. Damage to the plaintiff was not the necessary or legal consequence of the non-feasance of the defendants; the proper, and for aught that I perceive, the only course to be pursued, when the overseer refuses to act in a case like this, is, to apply to this court in behalf of the paupers for a mandamus. It is true that the paupers must be supported by some one pending the application; and that the mandamus would afford no means of re-imbursement. I see no remedy for this, unless the legislature should think proper to interfere, and make the overseers responsible upon an implied assumpsit for necessary expenditures in support of paupers, chargeable upon their respective towns. It appears to me, that if an action would lie at all, it must be in the name of the paupers themselves, ^(a)

King v. Butler, (15 John. 231,) and Olney v. Wickes, (18 John. 122,) have no application to this case. They merely decide that an overseer of the poor may bind himself, in his individual capacity, by an express promise to pay for the maintenance of a pauper.

Judgment affirmed. ^(b)

(a) Vid. 5 down, 6$9,per Spmecri Seoaloi*.

(b) Vid. Gourley v. Allen, (5 Cowen, 644,) and Flower v. Allen, (id. 654,)