
    Dudley S. Bartlett, Supt of Poor, App’lt, v. Levi Ackerman, Overseer of Poor, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Poor—Indigent persons.
    A widow with children, who has a little personal property and is sick and unable to work, and whose husband’s funeral expenses were paid by the town, and who has received aid from the town without objection from the overseer, is a poor and indigent person, within the meaning of the statute against the removal of poor persons from one town or county to another, with intent to charge such town or county with their support.
    2. Same—Removal.
    What will not constitute such removal.
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    Action to recover for the support of an alleged poor person under the statute. E. S., part 1, chap. 20, § 58.
    The facts appear in the opinion of the referee, as follows: 0. M. Parke, Referee.
    This action was brought by the superintendent of the poor of Montgomery county, N. Y., against the overseer of the poor of the town of Danqbe, Herkimer county, N. Y., to recover certain expenditures made on account of Pauline Hansen and her minor children, alleged to have been removed from Danube, Herkimer county, to Minden, Montgomery county, in violation of the provisions of the Revised Statutes relating to the support of the poor.
    The contested questions in the case are, were Pauline Hansen and her minor children indigent persons within the meaning of the statute at the time alleged; and, second, were they removed from Danube to Minden with intent to charge the latter town or the county of Montgomery with their support ?
    We find that Mrs. Hansen had lived with her husband upwards of two years prior to May 31, 1890, in the town of Danube; she had four minor children; on May 31, 1890, her husband died. They had prior thereto rented and worked a small place of about eighteen acres, which was owned by a Mr. Dell; Mrs. Hansen owned what was on the place, consisting of two cows, a horse, two pigs and some produce; this property she sold during the summer and realized about $135; two weeks before her husband’s death she had been confined, and at the time of his death was still weak and sick and unable to work; the day of Mr. Hansen's death she left her home with her children and went to one of the neighbor’s, Mr. Snell’s, and remained until the funeral, June 3, 1890. From this time for several months she was weak and sick, could only take care of her children, and some of the time requiring an attendant to care for her; at the time of her confinement and attendant sickness Dr. Young was her physician, and his bill for such service was afterward audited and paid by the town board. The funeral expenses of Mr. Hansen was also audited and paid by the town board; the overseer of the poor at or about the time of the funeral told the undertaker that if Mrs. Hansen did not pay the expense, he, the overseer, would see that he got his pay.
    Enough appears from the evidence to give a pretty clear view of the situation.
    Mr. Hansen had no money when he died; Mrs. Hansen had no monéy, but she had the personal property above mentioned and no other except a little provision which she carried with her when she left; she was left with four small children, one newly born; she herself was unable to work; she immediately became dependent, and, as events proved, continued so for several months; the town by its audit of Dr. Young’s bill incurred prior to Hansen’s death has admitted that she was then a worthy object of public charity ; afterwards in July the overseer did not raise any ques ¡ tian as toher condition, but furnished assistance readily; unde'I these circumstances I am led to the conclusion that Mrs. Hansen,! in June and July, 1890, was poor and indigent within the definitions as laid down in the statute and authorities. Rev. Stat. (Banks Ed.), 2,106; Knapp Law of Poor, 1; Goodale v. Lawrence, 88 N. Y., 517 ; City of Albany v. McNamara, 117 id., 168; 27 St. Rep., 165.
    This conclusion will impress itself more forcibly if we assume for the moment that under such circumstances the overseer of Danube took her over into Minden and left her with the avowed intention of making the latter town chargeable' with her support. Would the town of Danube escape liability by alleging that she was not indigent? I think not.
    But another essential element of plaintiff’s case is that the indigent person must be removed, etc., and must be removed with intent to make the other town or county chargeable with her supnort.
    However difficult it may be to obtain a judgment in such a case, the provisions of the statute as interpreted by the higher courts must be followed. Rev. Stat. (Banks’ ed.V 2,117, §§ 58, 59 ; Foster v. Cronlchite, 35 FT. Y., 150; Cortland Vo. v. Herkimer Co., 44 id., 26; Coe v. Smith, 24 Wend., 341.
    Mrs. Hansen left her home on the day her husband died with her children, and remained at one of the neighbors until after the funeral when she voluntarily went over into Minden with her children, taking her provisions and clothing with her; she sold what little property she had and never returned to Danube except for one day and then to pack her remaining effects and have them taken away.
    There is no act in the whole transaction that is contended to be a removal within the statute except the act of Hyde in giving the order for the house.
    But Mrs. Hansen at the time this order was given had been gone from Danube more than six weeks ; apparently with no intention of returning; this she had a right to do and no liability was incurred thereby. Foster r. Oronkhite, 35 N. Y., 150 ; Coe v. Smith, 24 Wend., 341.
    The house hired was selected by her as the place where she wished to live ; Hyde, when he gave the order, swears he did not know the location of the house; he asked Oeser which town it was in and Oeser could not tell him, though he lived only two miles from the Dingman house, while Hyde lived seven or eight; it is fair to assume that the house was near the town line since it was only a mile from Mrs. Hansen’s former home in Danube.
    It may be that Danube has furnished support for this family which it was not legally bound to furnish so long as she went to and remained in Minden voluntarily ; if so, Minden is by so much the gainer; but such fact does not create any liability under the statute in question.
    Upon the facts proven, I fail to find any evidence showing a removal with intent to charge the town of Minden with the support of this family, even without considering the positive denial by Hyde of any such intent.
    Judgment should be directed in favor of the defendant.
    
      W. B. Dunlap, for app'lt; Charles J. Palmer, for resp’t.
   Putnam, J.

This action was brought by plaintiff, as superintendent of the poor of Montgomery county, against defendant, as overseer of the poor of the town of Danube, Herkimer county, to recover expenditures made on account of one Pauline Hansen, alleged to be an indigent person, and her infant children, who, plaintiff claimed, had been removed from Herkimer county to Montgomery county in violation of the statute. .

The issues in the case were, whether said Pauline Hausen and her children were indigent persons under the statute or otherwise; and, second, were they removed by defendant or his predecessor to Montgomery county with intent to charge said county with their support.

The only questions raised are of fact. The referee reached the conclusion that the said Pauline Hansen and her children were, within the meaning of the statute, indigent persons, but that the evidence in the case failed-to establish a removal of such indigent persons from the county of Herkimer to the town of Minden, in Montgomery county, with the intent to charge said town with the support of this family.

A careful examination, of the evidence in the case leads us to the conclusion that the findings of the learned referee on the questions of fact in the case are correct We think that his conclusious are fully sustained by the evidence, and coincide with his vievvs as stated in his opinion.

It follows that the judgment should be affirmed, with costs. Mayham, P. J., and Herrick, J., concur.  