
    (29 Misc. Rep. 213.)
    HERKIMER COUNTY v. TOWN OF SANGERFIELD.
    (Supreme Court, Trial Term, • Herkimer County.
    October, 1899.)
    Paupers—Almshouses—Towns.
    Where children were temporarily, and during the brief time they were deprived of their father’s support, cared for at an almshouse, at the desire of themselves and their mother, and no one interfered in their behalf, and the ■ expense incurred was much less than it would have been had they been provided for in families or orphan asylums, etc., as required by Laws 1896, c. 225, § 56, prohibiting children under 16 to he sent as poor persons to county almshouses for support, the statute is not available as a defense by a town sued by the county for such support.
    
      Action by the county of Herkimer against the town of Sanger-field to recover expenses for the support of poor persons. Judgment for plaintiff.
    George H. Bunce, for plaintiff.
    W. H. Weller, for defendant.
   WILLIAMS, J.

The evidence offered by plaintiff, and objected to by defendant at the trial, is received, and defendant may have an exception. The plaintiff is entitled to recover the item of $61.90 for the support of the family at the Kelley Home from October 29, 1897, to February 9,1898, under subdivision 12, § 3, of the poor law (chapter 225 of the Laws of 1896, amended by chapter 507 of the Laws of 1897). The evidence shows the family required only temporary assistance, and could be and were provided for at home at less expense than would have been incurred at the county house. The power to do this was given to the county superintendent, and was not confined to the overseer of the poor alone. The objection that plaintiff cannot recover the expenses of supporting the children from February 9, 1898, to March 21, 1898, because such support was furnished at the county house, and not in families, asylums, hospitals, or other appropriate institutions, as required by section 56 of the poor law, is not well taken. The statute was enacted for the protection of the children themselves, and under the peculiar circumstances of this case the letter of the statute could not well be complied with. The support was temporary, to continue for a brief time. The mother and children desired it, and made no objection, and no one interfered in their behalf. The defendant was in no manner injured. The expense incurred was much less than it would have been if the statute could have been and had been literally complied with. The defendant is not in a position to interpose the statute as a bar to the right to recover the expense actually incurred for the support of the children during the brief time they were deprived of the care and support of their father. To have made arrangement for their support as required by the literal reading of the statute would have been a more permanent disposition of the children than was for the good of the family, or the interests of the defendant. The course adopted was a benefit to the defendant, rather than an injury; and no reason is apparent why it should be relieved from bearing the expenses actually incurred. Formal decision will be prepared in accordance with the views here expressed, and agreed upon by counsel and submitted for signature.

Ordered accordingly.  