
    Isaac Brazee, Plaintiff, v. Alexander Stewart, Defendant.
    
      Temporary relief of the poor in a town—ten dollar's only can be expended without the approval of the supervisor and a superintendent the overseers duty ends when he applies, theref 'or.
    
    Where no rules or regulations governing the furnishing of temporary or outdoor relief to the poor of a town have been made by the board of supervisors of the county or by the town board as provided by section 13 of the Poor Law (Laws of 1896, chap. 225) as amended by chapter 48 of the Laws of 1897, the overseer of the poor of the town, under section 23 of the Poor Law, cannot expend more than ten dollars for the temporary relief of a person who cannot be removed to the almshouse, unless he is authorized to do so by the order of the supervisor of the town and the written sanction of one of the superintendents of the poor of the county; the overseer has no power to compel the supervisor to give him such an order or the superintendent to give him such sanction; he performs his entire duty in the premises by applying to the supervisor in behalf of the poor person.
    Motion by the plaintiff, Isaac Brazee, for a new trial upon a case. containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court at the Steuben Trial Term on the 19th day of April, 1899.
    
      Sebring & Cheney, for the plaintiff.
    
      Francis A. Williams, for the defendant.
   Williams, J. :

The action was brought to recover $700 expenses incurred by the plaintiff for the care, nursing and maintenance of one Anna Merrick between October 1, 1897, and May 1, 1898.

The defendant was overseer of the poor of the town of Hornby, Steuben county, during the year 1897, and until about February 15, 1898, when his term of office expired.

The plaintiff in 1897 and 1898, and for many years prior thereto, was and had been a resident of the town of Hornby, and had in his family as his housekeeper one Miss Hill, and Mrs. Merrick, her mother, also lived in the family. Mrs. Merrick was an old woman, and having received serious injuries in the summer of 1897, she became about October first, helpless and bedridden, and continued to grow Worse until about May 1, 1898, when she died. While in this helpless condition she needed care, nursing and maintenance, was.in destitute circumstances, and the plaintiff furnished the care, nursing and maintenance necessary for her. An effort was made to procure aid for the old woman from the town, and to procure the town to pay for the expense incurred by the plaintiff in caring for her. Some small amount was realized by the plaintiff from the town for this purpose. Nothing further would be paid, or could be recovered from the town, and the plaintiff thereupon brought this action against the defendant personally to recover the balance of the expense incurred by him in furnishing such care, nursing and maintenance. The grounds upon which it is claimed this action can be maintained are: First, that the expense was incurred at defendant’s request and upon his promise to pay therefor; second, that the expense was incurred in reliance upon defendant’s, promise to perform his duty as overseer, to obtain the approval of the supervisor of the town and take the necessary steps to charge the town with • liability for such care, nursing and maintenance, and by reason of his neglect of duty and violation of' this promise, he made himself personally liable for such expense.

The action clearly cannot be maintained upon the first ground stated. The evidence shows that no request or promise to pay was made to bind defendant personally. The plaintiff testified: “ In my dealing with Mr. Steward I supposed I was dealing with him as overseer of the poor. My taking care of this old lady was upon the credit of the town. 1 didn’t give Mr. Stewart, personally, any credit for taking care of this old lady, and did not charge him personally . for taking care of her. I didn’t suppose I had to do it.” This conclusion stated by the plaintiff flows naturally and necessarily from the evidence given in detail.

The action can only be maintained, therefore, if at all, upon the second ground stated, the promise by the overseer to procure the approval of the supervisor, and to take the necessary .steps to charge the town with liability, which it is claimed it Was his official duty to do, and his failure to keep such promise and perform such duty. The complaint was based solely' upon a request and promise to pay by the defendant. There were no allegations therein of promise or failure to perform official duty, and it may well be doubted whether, under such a complaint, this second ground of recovery can be maintained. The answer, however, set up the facts with reference to the defendant’s official position and official action, and the evidence was taken without any question being raised as to the form of the complaint, and we very likely should determine the questions. now involved upon the merits, regardless of technical questions of pleading.

The Poor Law of the State (Laws of 1896, chap. 225, § 23) prescribes the duty of the overseer and the. supervisor in a case of this kind as follows: ■

“ § 23. Temporary relief to persons who can not be removed to alms-house.—If it shall appear that the person so applying [for relief] requires only temporary relief, or is sick, lame or otherwise disabled so that he can not be conveniently removed to the county alms-house * * * the overseers shall apply to the supervisor of the town, who shall examine into the facts and circumstances, and shall in writing order such sum to be expended for the temporary relief of such poor person as the circumstances of the case shall require, which order shall entitle the overseer to receive any sum he may have paid out, or contracted to pay, within the amount ^ therein specified, from the county treasurer * * * but no greater sum than ten dollars shall be expended or paid for the relief of any one poor person or one family, without the sanction, in writing, of one of the superintendents of the poor of the county, which shall be presented to the' county treasurer, with the order of the supervisor, except when the board of supervisors has made rules and regulations, as prescribed in section thirteen of this chapter.”

It was conceded on the trial that no rules or regulations were made by the board of supervisors, or by the town board, with reference to furnishing temporary or outdoor relief to the poor, after the Poor Law was enacted in 1896, or after section 13 thereof was amended in 1897. R may be well, however, to have in mind the provision of section 13. In the original section the board of supervisors alone could make the rules and regulations. The amendment provided if the board of supervisors failed to make such rules and regulations the town board of the town could make them. The section as amended by chapter 48, Laws of 1897, is as follows: “ Supervisors and members of town boards may direct as to temporary or out-door relief to the poor.— The board of supervisors of any county may make such rules and regulations as it may deem proper in regard to the rqanner of furnishing temporary or out-door relief to the poor in the several towns in said county, and provided the board of supervisors shall have failed to make any such rules and regulations the town board of any town may make such rules and regulations as it may deem proper in regard to furnishing temporary or out-door relief to the poor in their respective towns, by the overseer or overseers of the poor thereof, and also in regard to the amount such overseer or overseers of the poor may expend for the relief of - each person or family, and after the board of supervisors of any county, or' the town board of any town, shall have made such rules and regulations, it shall not be necessary for the overseers of the poor of the towns in said county, where such rules and regulations were made by the board of supervisors,’or if in a town by the said town board, to procure an order from the supervisor of the town, or the sanction of the superintendent of' the poor to expend' money for the relief of any person or family, unless the board of supervisors of such county or the town board of such-town shall so direct; * * * ” ' •

Clearly the defendant, as overseer of the poor, under these provisions of law, had no power to pay out, or contract for, more than ten dollars for the support or care of Mrs..Merrick unless authorized to do so by the order of the supervisor and the written-sanction of the county superintendent of the poor, and he had no power to compel the supervisor to give him such order or the superintendent to give him such sanction. It was very likely his duty to apply to the supervisor in her. behalf, but he had no further power in the premises. The defendant did apply to the supervisor, and the supervisor, as it was his duty to do, went to plaintiff’s residence where Mrs. Merrick was, and examined into the facts and circumstances. It was the supervisor’s duty to order such sum to be expended for her temporary relief as the circumstances of the case required. The overseer had no control whatever over the action of the supervisor; could compel him to do ..nothing. The supervisor made no order whatever. There was some effort made' to remove Mrs. Merrick to the county almshouse, but the removal was opposed by the plaintiff and his housekeeper, and was not effected. While the town board made no rules or regulations under the statute, yet they did, upon the procurement of the overseer, receive from the plaintiff a bill for a part of the expense incurred by him for the care, nursing and maintenance of Mrs. Merrick, amounting.to eighty-five dollars and fifty cents, and passed upon such bill, allowing him thereon- twenty-one -dollars and sixty-six cents, and the plaintiff was paid that amount. He was- not -satisfied, with fhe amount so allowed him, and refused--later,, when requested by the overseer, to-" make or present to the town board any bill for the further expense-incurred by him.

In view of-these facts, we are unable to see-howdhe overseer was responsible for the failure of the supervisor to-dti'. his duty, if there was such failure, or how the overseer was guilty of any neglect of •duty, or how it was possible for him to take any further steps than he did take to charge the town with liability for the care, nursing and maintenance of Mrs. Merrick. It seems to us that he did all he could do officially or personally in the premises, and that there is no ground for charging him personally with the expense-incurred by plaintiff for such care, nursing and maintenance.

In King v. Butler (15 Johns. 281) the court said that it was the duty of the overseer to furnish the relief; he was under a legal as well as moral obligation so to do; that the duty of procuring from a justice an order was imposed upon the overseer, and was his authority for directing the relief, and if he neglected to procure the order it was his own fault or negligence. Suppose the overseer applied to a justice for the order and could not get it, would he still be liable for the expense incurred for relief, when without the order he had no authority to furnish it ? Whatever the law may have been under the statute then in force, the overseer, under the Poor Law now in force has no duty imposed upon him to get an order from the supervisor; his only duty is to apply to the supervisor. He cannot compel the supervisor to make the order, and he cannot furnish temporary relief beyond ten dollars unless the supervisor makes the order and the superintendent sanctions the expenditure. How, under such a law, can the overseer be said to neglect his official duty and be personally liable for the expense incurred for the care, nursing and support of Mrs. Merrick because he did not get the order and sanction ?

The plaintiff calls our attention to many cases holding an officer personally liable for damages resulting from his neglect of duty, but those cases are unimportant here, because the overseer was guilty of no neglect of duty, as we have seen.

The court committed no error in granting the motion for a non-suit. The plaintiff’s exceptions should be overruled and the motion for a new trial denied and judgment ordered on verdict, with costs.

All concurred.

Plaintiff’s exceptions overruled and motion for new trial denied and judgment ordered for the defendant on the verdict, with costs.  