
    H. Marvine Wood, Superintendent of the Poor, etc., v. Charles E. Simmons et al., Commissioners, etc., et al.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    I. POOR AND POOR LAWS—COUNTY WHERE LABORER IS INJURED IS LIABLE for ms support—Laws 1885, chap. 546.
    Where a laborer, a resident of one of the counties of this state, while in another county engaged in earning a livelihood for himself and his family, is so injured by an accident occurring therein as to become wholly incapable of providing for himself, Reid that the county of which he was a resident is not liable in an action for his maintenance and support.
    ,2. Same—Laborer who has always supported himself not such a poor PERSON AS REFERRED TO IN Laws 1885, CHAP. 546.
    A person who has always supported his family and himself by his labor cannot be designated as a pauper nor is he such a poor person as is referred to in the s'atute as one liable to become a public charge.
    
      Application for judgment in a controversy submitted upon facts admitted.
    
      J. B. Gleason, for pl’ff; W L Turner, for resp’t.
   Van Brunt, P. J.

The plaintiff is a superintendent of the poor of Delaware county in the state of New York. On the 17th of May, 1888, and for six years immediately prior thereto, one Motolario had his residence in the city of New York, but during some parts of this time was employed as a day laborer on the line of the Ontario and Western railway, a railway running through various counties of the state, and among them Delaware county. During this period Motolario maintained a wife and family in the city of New York, in the winter living with his wife and family, and when employed away from said city upon said railway during other seasons of the year, sending his monthly wages to his wife for her support and that of his family. His only means of support were his wages as an ordinary day laborer. On or about the first of April, 1888, he came to the town of Sidney in the county of Delaware and was there employed on the said Ontario and Western railway up to the 17th of May, 1888, upon which day he was seriously injured by an accident, and it became necessary to forthwith amputate his right leg and left foot and to provide attendance for him.

By reason of the accident Motolario became wholly without means to provide for himself, and application was immediately made to the plaintiff, as superintendent of the poor in the county in which the accident happened, and thereupon he was relieved and assisted by the plaintiff as such superintendent, and the expenses of his support and maintenance, necessarily and actually made and paid out by the plaintiff as such superintendent, were $430.51.

Prior to the accident Motolario was an able-bodied man, earning wages sufficient, but not more than sufficient, to> support himself and family without the need of any assistance from the authorities either of Delaware or New York counties, and he did not receive any assistance from said counties prior to said accident. On the 31st of May, 1888, the plaintiff served upon the board of charities and corrections a notice in writing that they were required to provide for the relief and support of said pauper. The board of charities and corrections did not, within thirty days, either take or remove Motolario to their county or there support him, or pay any of the aforesaid expense of such notice, or of the support of said Motolario. Upon the 11th of July, 1888, the claim was presented to the corporation and the comptroller refused to make any adjustment or payment of said claim

In August, 1888, the plaintiff commenced an action against the board of commissioners of charities and-correctian to recover the aforesaid claim, which action was discontinued upon the submission of this controversy.

The questions submitted to the court upon this case are:

Was Motolario a pauper within the meaning of the statutes in such case made and provided ?

Is the said expense of $430.51 a proper charge against the city and county of New York?

The question, therefore, presented is whether the county of New York is liable for the support of each and every person who may be a resident within the city of New York, and who, while in another county, engaged in the earning of a livelihood for himself and family, has, by an accident occurring therein, become wholly incapable of providing for himself.

The rights of the parties depend upon the Revised Statutes, as enacted or codified in 1830, and as modified by chapter 546 of the Laws of 1885, the amendment of chapter 486 of the Laws of 1888 not being applicable, as such amendment accrued after the right of action herein accrued, if any. By section 31 of title 1 of chapter 20, part 1, of the Revised Statutes, it is provided as follows:

“ No person shall be removed as a pauper from any city or town to any other city or town of the same, or any other county, nor from any county to any other county, but every poor person shall be supported in the town or county where he may be, as follows:

First, If he hath gained a settlement in any town in such county, he shall be maintained by such town.

Second. If he hath not gained a settlement in the county in which he shall become poor, sick or infirm, he shall be supported and relieved by the superintendents of the poor at the expense of the county.

Third. If such person be in the county where the distinction between town and county poor is abolished, he shall, in like manner, be supported at the expense of the county, and in both the cases aforesaid, proceedings for his relief shall be had as hereinafter directed.

Fourth. If such pauper be in a county where the respective towns are liable to support their poor, and hath gained a settlement in some other town of the same county than that in which he may then be, he shall be supported at the expense of the town where he may be, and the overseers shall give notice, in writing, to the overseers of the town to which such pauper shall belong, requiring them to provide for the relief and support of sucia pauper.”

The remainiiag sections to which it is necessary to call attention are sections 58, 59, 60, 61 and 62. Under these sectians, it has been decided, and it is conceded upon the part of the plaintiff, that if any pauper shall not have gained a settlement in the county in which .he shall become poor, sick or infirm, the provisions that “proceedings for his relief shall be had as hereinafter directed, were left without application It is claimed,' however, that this difficulty was reached by chapter 546 of the Laws of 1885, which amended section 59 so as to read as follows: “any pauper so removed, brought or enticed, or who shall, of Ms own ac cord, come or stray from one city, town or county, into any other city, town or county, not legally chargeable with his support, shall be maintained by the county superintendents of the county where he may be.’"

The portion in italics being the amendment.

Under this provision it is claimed that a liability upon the part of the city of New York exists in favor of the superintendent of the poor of Delaware county. This section reads: “'Any pauper so removed (referring to sec. 58), brought or enticed, or who shall, of his own accord, come or stray from one city, town or county into any other city, town or county not legally chargeable with bis support, shall be maintained by the "county superintendents of the county where he may be.” And such superintendents may give notice to the overseers of the poor of the town from which he was brought or enticed if such town be liable for his support, and then by taking certain other proceedings they may fix the liability for such support upon said town or county.

It is assumed by the plaintiffs that the words “ poor person,” referred to in the statute, mean those who depend on their daily labor for their support. We think this is an erroneous construction, in that the terms poor person and pauper are used interchangeably in the statute, and a person who has always supported his family and himself by his labor cannot be designated a pauper, nor is he such a poor person as is referred to in the statute as one liable to become a public charge.

But in the section in question, by virtue of which the plaintiff claims, the words “poor person” are not used. The provision of the section is that any pauper who shall, of his own accord, come or stray from one county into any other county not legally chargeable with his support.

This certainly does not mean an able bodied man who has always maintained himself and family by his own exertions, and who has come into another county, and there, without fault upon his part, by means of an accident has become unable to support himself. Such a man is many degrees removed from the condition of a pauper, and it is only in case any pauper shall, of his own accord, come or stray from one city, town or county into another city, town or county, that the liability of the town or county from whence he came exists.

It seems to us that the amendment of 1885 in no way relates to the question now before the court. It in no way applies to such a person as this Motolario, and by no forced or strained construction of the statute can he be held to be deemed a pauper, and if he was not a pauper at the time he came or strayed into Delaware county the city of New York is not liable for his maintenance and support because of the accident which happened to him within the confines of that county, and which took away the means of earning his livelihood.

Judgment ordered for the defendant, with costs.

Daniels and Brady, JJ., concur.  