Overseers of the Poor of Norwich v. Over Seers of the Poor of New-Berlin

18 Johns. 382 | N.Y. Sup. Ct. | 1820

Platt, J.

delivered -the opinion of- the Court. I think there is no foundation for either of the exceptions taken at the trial.

The written agreement was specially declared on ; and whether it wms obligatory on the defendant below, or not, it was at least pertinent evidence under the general issue, and the exception to the relevancy of that agreement, could properly be taken advantage of only by demurrer, or by motion in arrest of judgment. But the record is before us on the writ of error; and although the bill of exceptions was frivolous, yet the question fairly occurs, does the declaration show a right of action in the plaintiffs below ?

Without entering into the general question, whether overseers of the poor, in their official charaetev, may sue and be sued, 1 am of opinion, that the declaration is substan-. tially defective.

The statute required the supervisors and overseers of the two towns, to “ divide the money and poor’’ of the old town of Norwich, and expressly declared, that, “ after the di- *" vision, each of the towns shall maintain its own poor.” Now it appears, that they divided the money only, and the six acknowledged paupers were not divided; on the contrary, those officers expressly agreed not to divide the paupers, but that they should be supported by the towns jointly, each contributing in proportion to their respective dividends of the money ; and that “ these poor persons be disposed of according to the best advantage, by the poor-masters of the said towns, or either of the said towns.”

Admitting the general proposition contended for, by the plaintiffs below, that overseers of the poor may, within the scope of their office, contract for the maintenance of the poor, so as to bind their successors ; yet I think it clear, that this contract was not within the sphere of their official duties, but expressly contrary to law. Instead of dividing the poor, in order that each town, by its own officers, might provide for its own paupers, the supervisors and overseers, in 1808, disobeyed the injunction of the statute; and, in effect, formed a partnership between the two towns, for the future support of these, paupers, with the preposterous stipulation, that they should “ be disposed of’’ as the overseers of both towns, or either of the towns, deemed most advantageous. The law confines the charge and controul of paupers in every town, exclusively to the officers of the town to which the paupers belong. It is a power which cannot be delegated by the officers of one town, to those of another town, nor can it be exercised by the officers of several towns in common.

On this ground, therefore, (which was not touched in the argument,) I am of opinion that the judgment ought to be reversed.

Judgment reversed.