
    SUPREME COURT—APP. DIVISION—SECOND DEPARTMENT,
    June 17, 1915.
    THE PEOPLE ex rel. N. Y. JUVENILE ASYLUM v. BOARD OF SUPRS., COUNTY OF NASSAU.
    (168 App. Div. 863.)
    Children—Liability of counties for support of in juvenile asylum— Penal law sections 486, 1298.
    The expense for the care of children committed to a juvenile asylum under section 486 of the Penal Law, because they did not have “ proper guardianship ” and also because they were “ disorderly or ungovernable,” and also for the care of children committed in violation of section 1298 of the Penal Law, after conviction for petit larceny, is a county charge.
    Certiorari issued out of the Supreme Court and attested on the 28th day of January, 1915, directed to the board of supervisors of the county of Nassau, commanding them to certify and return to the county of Nassau and all singular their proceedings had in disallowing and refusing to audit the claim of the relator.
    
      Lloyd M. Howell [Jacob H. Shaffer with him on the brief], for the relator.
    
      Charles T. McCarthy, for the respondent.
   Thomas, J.:

The certiorari is to review the action of the board of supervisors of the county of Nassau in disallowing, upon the ground that they are not a county charge, bills presented by the relator for the support of ten children committed to its institution. Four children not having proper guardianship ” were committed, pursuant to the Penal Law, section 486, which provides-that “ Any child actually or apparently under the age of sixteen years who is found: * * * 2. Not having any home or other place of abode or proper guardianship; * * * Must be arrested and brought before a proper court or magistate, who may commit the child to any incorporated charitable reformatory, or other institution, * * * or may make any disposition of the child such as now is, or hereafter may be authorized in the cases of vagrants, truants, paupers or disorderly persons, but such commitment shall, so far as practicable, be made to such charitable or reformatory institutions.” Three children were committed severally as “ disorderly and ungoverable ” in violation of subdivision 7 of such section 486 of the Penal Law, which describes children under the age of sixteen years who are disorderly and children who are ungovernable and authorizes commitment as above stated. Two children were committed for violation of the,Penal Law, section 1298,. after conviction for petit larceny. One child was committed because he was not sent to school. The duty of. sending a child to school is placed upon the person standing in parental relation, and if there was a violation, such person was the offender. The punishment for his sins does not fall on the descendant. Whether the matter upon proper proof would fall under the Education Law, sections 633 and 634 and section 635, subdivision 4 and 9, we do not now decide. Passing those convicted of petit larceny, the other children are not criminals- and are dissociated from criminals, but are given the status of vagrants, truants, paupers, and the disposition that is authorized for such persons is provided for them. The Penal Law, subdivision 8 of section 486, provides that children convicted of a misdemeanor shall not be committed, longer than is necessary for transfer, to a prison, jail or penitentiary, but to “ an insti— tution authorized by law to receive children on final commitment.” But such subdivision does include an institution authorized “ to have compensation therefor from the city or county authorities.” Another statute aids solution. Section 56 of the Poor Law (Consol. Laws, chap. 42 [Laws of 1909, chap. 46], as amd. by Laws of 1909, chap. 347) provides: “ No justice of the peace, board of charities, police justice, or other magistrate, or court, shall commit any child under sixteen years of age, as a vagrant, truant or disorderly person, to any jail or county almshouse, but to some reformatory, or other institution, as provided for in the case of juvenile delinquents; and when such commitments are made, the justice of the peace, board of charities, police justice, or other magistrate or court making the same, shall immediately give notice to the superintendents of the poor or other authorities having charge of the poor of the county in which the commitment was made, giving the name and age of the person committed, to what institution, and the time for which committed; nor shall any county superintendents, overseers of the poor, board of charity, or other officer, send any child under the age of sixteen years, as a poor person, to any county almshouse, for support and care, or retain any such child in such almshouse, but shall provide for such child or children in families, orphan asylums, hospitals, or other appropriate institutions for the support and care of children as provided by law, except that a child under two years of age may be sent with its mother, who is a poor person, to any county almshouse, but not longer than until it is two years of age. The boards of supervisors of the several counties, and board of estimate and apportionment of the city of New York, and the appropriate board or body in other cities and towns shall take such action in the matter as may be necessary to carry out the provisions of this section * * There certain information is required to be given to the superintendents of the poor of the county. It is the information that an official charged with the support would need. The boards of supervisors of counties are charged with the duty of carrying out the act. If now vagrants, truants and disorderly persons fall under the charge of the county officials, the children above named, who are by statute of a similar status and assimilated to them for reformatory treatment, and associated with them in places of detention, would seem to be charged on the county. The policy of the State is to confine adults who are disorderly, or who have committed petit larceny, in the jails of the county, and the expense of support then falls upon the county. (County Law, § 240, subd. 7.) The offense determines the place of confinement; and the place of confinement designates the political subdivision that shall bear the expense. The child under the age of sixteen, capable of committing petit larceny and convicted thereof, has committed the same offense as an adult, but for his welfare he is confined, not in jail, but in an institution of the nature described. The interesting opinion in St. Agnes Training School v. County of Erie (68 Misc. Rep. 648) reaches the conclusion that as the expense of confining adult offenders of the kind named would burden the county, the expense thereof would fall on the county, although the. offender was sent, not to a county jail, but to an institution similar to that of the relator. This seems to raise the question whether the county is liable for the support of a person who is disorderly, or who has committed larceny, irrespective of the place of confining him, or whether it is liable for the maintenance of the county jail, and the persons committed there, charged with or convicted of crimes. However that may be, the present question is, what body shall in the first instance pay the relator for the care of children (1) not having proper guardianship; (2) disorderly or ungovernable; (3) guilty of petit larceny, and all similarly confined. The Penal Law, section 486, points out the place of confinement, and among other things states that the disposition of them may be the same as authorized “ in the cases of vagrants, truants, paupers or disorderly persons.” But section 56 of the Poor Law (as amd. supra) states what may and may not be done with the classes of children named, and requires notice to the superintendents of the poor of the county and imposes on the boards of supervisors the duty of taking “ such action in the matter as may be necessary to carry out the provisions of this section.” (Re-enacting former Poor Law [Gen. Laws, chap. 27; Laws of 1896, chap 225], § 56, which re-enacted Laws of 1878, chap. 404, § 1, as amd. by Laws of 1879, chap. 240.) Why give notice to the superintendent of the poor if it be a matter of indifference to the county? What action is it intended that the board of supervisors shall take? The substantial thing to be done is to see to it that the children are supported in a proper institution. That is the essential action in making the act effective—provision for proper support in an authorized institution. It is useless to speculate upon what other acts the county officers could do. Without the vital act of payment for support, the statute becomes useless. So, let the board of supervisors do what the State has commanded.

The action of the respondent in disallowing the claim save in the case of the child Abrams is reversed, and the claim allowed, except as named, with interest from January 14, 1915, without costs, as one claim is rejected.

Jenics, P. J., Carr, Stapleton and Putnam JJ., concurred.

Determination modified in accordance with opinion, and as so modified, confirmed, without costs. Order to be settled before Mr. Justice Thomas.  