
    (70 Misc. Rep. 357.)
    MANUEL v. BECK.
    (Orleans Counts' Court.
    December Term, 1910.)
    1. Adoption (§ 8)—Statutes—Compliance.
    Under Domestic Relations Law (Consol. Laws, c. 14) § 115, providing for adoption of children from charitable institutions by an instrument of adoption containing specified provisions signed and sealed in the corporate name of the charitable corporation by the officers authorized by the directors thereof to sign the corporate name, an instrument of adoption must be accompanied with proof of the authority of the officers signing it to sign it.
    [Ed. Note.—For other cases, see Adoption, Cent. Dig. §§ 121-14; Dec. Dig. § 8.]
    2. Inpants (§ 19)—Commitment of Orphan Children.
    Under Poor Law (Consol. Laws, c. 42) § 56, providing for the care of destitute children in families, orphan asylums, or other proper institutions for the support and care of children, a commitment of a destitute child to the home of a corporation incorporated for the purpose of caring for orphan children cannot be made by simply placing the child in the institution and leaving him there.
    [Ed. Note.—For other cases, see Infants, Cent. Dig. § 19; Dec. Dig. § 19.]
    3. Apprentices (§ 8)—Binding Out Indigent Children—Contracts.
    Under Poor Law (Consol. Laws, e. 42) § 56, providing for the care of destitute children In institutions for the support and care of children, and Domestic Relations Law (Consol. Laws, c. 14) §§ 115-124, authorizing charitable institutions for the care of orphans to bind an orphan out as a servant by an indenture in writing, and State Charities Law (Consol.
    Laws, c. 55) §§ 300, 301, providing who may place out destitute children in a family in the manner provided by law, and Penal Law (Consol.
    Laws,,e. 40) § 493, making it a misdemeanor to take an apprentice without having first obtained the consent of his legal guardian or unless a written agreement has been entered into as prescribed by law, a verbal arrangement made by an officer of a charitable institution for the placing in a family of an orphan child merely placed in the institution without any commitment is not binding and does not prevent the child from recovering the reasonable value of the services rendered while with the family.
    [Ed. Note.—For other cases, see Apprentices, Cent Dig. § 11; Dec. Dig. § &]
    4. Work and Labor (§ 7) — Persons in Family Relation — Recovery of Services.
    An orphan child placed in a family under a verbal arrangement by an officer of a charitable institution which had received the child may re-, cover for the reasonable value of the services rendered; there being no kinship existing between the parties.
    [Ed. Note.—For other cases, see Work and Labor, Cent. Dig. § 11; Dec. Dig. § 7.]
    
      Action by Westlake R. Manuel against William Beck. Motion for new trial on the minutes after verdict for plaintiff. Denied.
    Gerald B. Fluhrer (Herbert T. Reed, of counsel), for plaintiff.
    Thomas A- Kirby, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Hep’r Indexes
    
   SIGNOR, J.

Motion for a new trial on the minutes. Action to recover the value of three years’ services rendered by the plaintiff to the defendant during his minority. The court directed a verdict for plaintiff, leaving to the jury only the value of the services. Jury rendered a verdict for the plaintiff for $301.32.

The plaintiff, when he was about 11 years of age, by reason of the death of his parents, became a public charge and was taken by the overseer of the poor for the city of Niagara Falls, where he resided, to the Home for the Friendless located at Lockport, in the county of Niagara. The superintendent of the poor for Niagara county then gave what purported to be a written commitment, signed by him, committing said Westlake R. Manuel to said institution “to be cared for at the expense of Niagara county.” He remained at the Home for the Friendless some eight or ten months, when he was taken by an employé of said institution to the home of the defendant in the adjoining county of Orleans and left there with instructions to defendant to treat him as one of the family and, if he was not satisfactory, to notify the person who brought him there, who was known as a visitor for the home. Mr. Bayliss, the visitor, said he told him (the defendant) to care for him in sickness and in health and, if he should die, give him a Christian burial, and, if he became sick of this arrangement, they would take him away. There were never any writings or any other arrangement than the one above given. The plaintiff remained with the defendant four years as a member of the family, and during the last three years addressed defendant and his wife as his parents. It was conceded that during the first year his services were worth no more than he received by way of board, clothes, and care; but it was proven that during the last three years his services were worth the amount awarded by the jury over and above what he received.

The Home for the Friendless is a corporation incorporated by a special act of the Legislature mainly for the purpose of caring for poor and orphan children.

■By the poor law (Consol. Laws, c. 42) of this state it is provided that no child under 16 years of age, unless in exceptional cases, shall be committed to any almshouse, but provides (section 56) that:

“Provision shall be made for the care of such child or children in families, orphan asylums, hospitals or other appropriate institutions for the support and care of children as provided by law.”

Section 124 of the domestic relations law (Consol. Laws, c. 14) provides that an orphan asylum or charitable institution for the care of orphans, friendless, or destitute children, may bind out as an apprentice, clerk, or servant an indigent or poor child by an indenture in writing. It also provides that such child must have been absolutely surrendered to the care and custody of such asylum or institution, in pursuance of the provision of the poor law, or have been placed therein as a poor person, as provided in section 56 of said law, or have been left to the care of such asylum or institution with no provision by the parent, relative, or legal guardian of such child for its support for a period of one year next preceding. Section 123 provides for the binding out of a minor whose support shall become chargeable to a municipal corporation, but.in such case the indenture must be signed by certain officers therein named.

Sections 300 and 301 of the state charities law (Consol. Laws, c. 55) provide who may place out destitute children in a family other than that of a relative, and those authorized by section 301 may only place them out "in the manner now provided by law”; and section 303 provides that a record shall be kept of the parentage of the child and residence of parties with whom it is placed, etc.

It is apparent from the formalities to be observed that the law does not contemplate placing children in families, to remain, except in the manner provided by law. There seems to be two ways of placing children in families provided by law: Article 7 of the domestic relations law provides for the adoption of children. Section 111 provides whose consent shall be necessary. This section does not seem to contemplate an adoption on consent of a charitable institution. Section 115 provides how children may be placed for adoption by charitable institutions and how the adoption shall be effected, and this must be by the execution of an instrument containing substantially the same provisions as the instrument provided in the article for voluntary adoption, and the instrument must be signed and sealed in the corporate name of such corporation by the officer or officers authorized by the directors thereof to sign the corporate name. In such cases this instrument should doubtless be accompanied with proof of the authority of the officers to sign.

Article 8 of the domestic relations law provides for binding out a minor to serve as clerk or servant in any trade, profession, or employment; but this must be done by indenture, and section 121 provides for protecting the interests of the child, and section 122 provides what consents are necessary; but in all such cases the consent of the minor as well as of some one authorized to act in his behalf is necessary. Sections 123 and 124 provide for binding out minors by poor officers and by charitable institutions, but the binding out must in each case be by a written instrument, and a child can be bound out under section 124 only when such child has been absolutely surrendered to the care and custody of the institution- either in pursuance of the provisions of the domestic relations law or under section 56 of the poor law, and under this section the commitment cannot be" by simply placing the child in the institution and leaving him there.

By section 493 of the penal law (Consol. Laws, c. '40) it is made a misdemeanor for a person to take an apprentice without having first obtained the consent of his legal guardian or unless a written agreement has been entered into as prescribed by law.

In the case under consideration the plaintiff was not in the home a year. He had not been committed under any of the provisions of law that would authorize binding him out. He was not removed therefrom by any of the poor officers of the town or county. He was simply taken by an employé of the home and left in the family of the defendant to be returned at any time, if the arrangement was not satisfactory. The defendant was under no obligation to keep him longer than he wished or to provide for him or to pay him any sum when he should leave. Whatever verbal arrangement was made was made by a person having no legal right to make any arrangement whatever in reference to his care or services.

It was claimed that, independently of the action of the person who took him to the home of the defendant, by the plaintiff’s remaining, the relation existing was such that he occupied the position of a member of the family and could not recover for his services. There was no relationship or kinship existing between the parties by which any such presumption would arise; no contract or agreement was made by any one having any right to represent the infant or by the infant himself; and, had he entered into an agreement to work even for an agreed compensation, he might have disaffirmed the agreement and recovered on a quantum meruit. This proposition hardly needs citations for its support; but the law in this respect and the principles on which it rests are laid down in Whitmarsh v. Hall, 3 Denio, 375; Baum v. Stone, 12 Wkly. Dig. 353; Streever v. Birch, 62 Hun, 298, 17 N. Y. Supp. 195; Aborn v. Janis, 62 Misc. Rep. 95, 113 N. Y. Supp. 309.

The motion for a new trial should be denied.  