2 Cow. 537 | N.Y. Sup. Ct. | 1824
The question-is,- where was the last legal settlement of-Gerdt Glute, the pauper ?
It is admitted-that his grandfather-was settled in Niskayuna.
I-t does not appear- from the-return, that the pauper ever gained a settlement in his Wn right, any where."- We-must then look back and inquire, where was the settlement of his father ? If we admit the parol evidence which was received‘by the sessions," it appears that Jacob-Glute, father of the pauper, was born upon Mill’s Island. In what town this island was situate, at that time,- does not appear; nor is it, at present, material. The place of the birth is," prima facie, evidence" Of the place of settlement. It remains- so, till the settlement "of the father is ascertained, and then the settlement of the child is the" same as that of the father: (Delavergne v. Noxon, 14 John. Rep. 334. O. of Vernon v. O. of Smithfield, 17 id. 91.) The father of Jacob Glute was settled in Niskayuna : and the birth of the’latter upon Mills’ Island did not give him a different settlement This circumstance, then, does not relieve Niskayuna.
It is next contended that he served an apprenticeship for more than two years in Albany. To gain a settlement in this manner, he must have been bound an apprentice or servant by indenture, or by deed, contract or writing not indented ; and in consequence of such binding, have served a term not less than two years. (1 R. L. 279.)
The testimony does not show that Jacob was bound in either of these ways. There is no evidence, that any written instrument ever existed, binding him to Goervey. For aught that appears, the binding may have been by parol, in
It is contended, however, that he was acknowledged as a pauper of Albany, in 1812; that he was received on an order of removal from Niskayuna, and supported in the almshouse, till 1815, when he died there. These facts are proved by parol, but the books produced disprove them; and the appellants have not brought forward the best evidence in their power. They might have produced the quarterly returns of the superintendent, if they supposed that any of the books were destroyed.
They omitted to. give notice to produce the order of removal, and were, therefore, not entitled to give parol proof of its contents.
But even if there were no objection to the competency of the evidence, the facts proved by Niskayuna would not make out a settlement of Gerrit Clute in Albany, by showing that his father had one there in 1812. The pauper is now about 50 years of age ; in 1812, he must have been 39. He had been long before emancipated, and his settlement did not follow that of the father, though the latter may afterwards have gained one in Albany.
I am, therefore, of opinion, that the order of the sessions be affirmed.
Judgment of affirmance.