Pomeroy v. Wells

8 Paige Ch. 406 | New York Court of Chancery | 1840

The Chancellor.

Some of the formal objections to the complainants’ bill are well taken, and the demurrer must be allowed for that reason, even if this court could grant the relief asked for upon the. merits. The county of Otsego is not one of those counties in which the distinction between town and county paupers is abolished in the revised statutes. And though it is probable the supervisors have abolished the distinction, as they are authorized to do by the 24th section of the title of the revised statutes relative to the relief and support of indigent persons, (1 R. S. 620,) so as to make the defendant’s wife a county charge instead of a charge upon the town in which she and her husband are settled, the fact that such distinction has been abolished no where appears in the bill. In the absence of such an allegation, the overseers of the poor of the town of Plainfield, instead of the county superintendents, appear to be the proper persons to compel the defendant to provide for the support and maintenance of his wife, if she is a pauper so as to become a public charge.

The statute also declares that the superintendents of each county shall be a corporation. And where it is proper for them to bring a suit in their official capacity, it ought to be in the corporate name given them by the statute ; and not, as in this case, in their individual names, with the addition of their official description. (See 1 R. S. 617, § 16.) But as these are mere matters of form which may be obviated by amendment of the bill, I proceed to the examination of the other questions in the cause.

It is stated in the bill, that the complainants received a petition from the overseers of the poor of the town of Plainfield, and divers other citizens of that town, stating the destitute situation of the defendant’s wife, and that she was a lunatic, and commending her to the care and protection of the complainants. From this statement I infer that there never was in fact any order made by the overseers of the poor, or either of them, for her removal to the county poor house, to be supported at the expense of the county as a pauper, as directed by the statute, (1 R. S. 622, § 31, 39.) And without such an order, or a warrant from two justices, under the provisions relative to the safe keeping and care of lunatics, I do not find any authority in the statute for receiving her in the county poor house to be supported at the public expense. (See Flower v. Allen, 6 Cowen’s R. 654.) I think the defendant’s counsel is right in supposing that where a lunatic is to be supported as a pauper, either in or out of the county poor house, the overseers of the poor of the town should proceed to inquire into the circumstances and make an order for relief as directed by the thirty-ninth section of the title relative to the support and relief of indigent persons. And after such an order has been made, the seventy-third section authorizes the superintendents of the county poor house to provide for the support of such lunatic pauper out of the poor house, if they think proper to do so.

The objection that the complainants had a remedy at law, by a summary application to the court of general sessions, to compel the defendant to support his wife, is certainly not well taken ; as the statutory provisions compelling certain persons, who are of sufficient ability, to provide for the support of their indigent relatives, do not extend to the case of husband and wife. The only relatives mentioned in the present statute are parents and children ; the legislature, in the revision, having stricken out grandparents, who were embraced in the statute of Elizabeth. As the common law had afforded an ample remedy for the recovery of the necessary expenses of the wife’s support, where the husband had not absconded, by a suit against him in favor of any person who thought proper to furnish her with the means of living, the only summary proceedings authorized against him is a seizure of his property where he absconds.

Upon the merits of this case, however, I think the present bill cannot be sustained, even if it was not defective in form. Where the separation of the wife from her husband is involuntary, and without fault on her part, as in this case, any person who furnishes her with necessaries, even against the express directions of the husband who neglects to provide for her, may by the common law sue the husband therefor, upon his implied promise to pay. (Law of Husb. and Wife, 109. 2 Kent’s Com. 148.) If the defendant, therefore, is liable for the support of this woman as his wife, notwithstanding his pretended divorce in Pennsylvania, as I have no doubt he is, if the bill states truly that he had from the time of his marriage been an inhabitant of the county of Otsego, the proper remedy of the complainants was by a suit at law against him, to recover the amount necessarily expended for her support. The bill shows that he has property which can be reached by execution to satisfy a judgment which may be recovered against him. But even if his property is all beyond the reach of execution, that is not sufficient to justify the complainants in coming into this court, in the first instance, before they have exhausted their remedy at law. And if for any cause the defendant is not legally liable for the expenses which have been already paid, or which may be hereafter paid for the support of his wife, this court has no general jurisdiction, in this form, to enforce the performance of a moral obligation, which the law will not recognize as a sufficient foundation for an action.

The demurrer is therefore allowed, and the complainants’ bill must be dismissed with costs ; but without prejudice to their rights at law, if they have any. And as the suit has been commenced by the superintendents in their individual names, and not in the corporate name given them by the statute, they will be personally liable to the defendant for the costs, in the first instance; and must charge the same in their accounts against the county, according to the directions of the revised statutes on that subject. (2 R. S. 476, § 108.)