
    The Nuns of the Order of St. Dominick v. Long Island City.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    'Overseer oe poor—Power oe—Liability oe town for support of poor —Long Island City—3 Bank’s R. S., 1859, § 31—Laws 1871, chap. 461, tit. 2, § 1—Laws 1884, chap. 488, § 2.
    
    A town is charged with the support of the poor when there is no action taken by the supervisors to abolish the distinction between town and county poor. 3 Bank’s R. S., 1859, § 31. The charter of Long Island City, Laws 1871, chap. 461, title 2, § 1, provides for the office of overseer of the poor with the like powers as are given to overseers in towns. ' The overseers of the poor are by Laws 1884, chap. 438, § 2, forbidden to send any child between the age of two and sixteen years to any county poor house, and directed to provide for their care in incorporated asylums or other institutions conducted by persons of the same religious faith as the parents of the child. Held, that Long Island City was liable for the cost of keeping children committed by its overseer of the poor to the charge of an asylum.
    Motion for judgment on a verdict directed by the court at a circuit in Kings county, subject to the opinion of the general term.
    
      Jackson & Burr, for pi if; W. J. Foster, for def’t.
   Barnard, P. J.

—The case does not disclose whether or not the distinction between town and county poor has been abolished by a vote of the supervisors. It does appear that there is a county poor house, but no orphan asylum. The plaintiffs are a corporation organized under the laws of the state for the care, education and support of poor orphan children. The overseer of the poor of the defendant, by written order, committed certain children between the ages of two and sixteen years, who were residents of Long Island City.

The plaintiff received these children and cared for them and supported them on the authority of the overseer’s order and upon the credit of the defendant. The sole question is: Had the overseer such power? The town is charged with the support of the poor when there is no action taken by the supervisors to abolish the distinction between town and county poor. 3 Bank’s R. S., 1859, sec. 31.

The city stands under the poor laws in the place of the town. The charter of the defendant provides for the office of overseer of the poor with the like powers as are given to overseers in towns. Chapter 461, Laws of 1871, title 2, §1.

The charter of defendant makes the city a town. Title 2, chap. 1.

The Revised Statutes provide that in cases where permanent relief is asked for, the overseers should remove the poor persons to the county poor house (Banks’ Revised Statutes, 1861, § 39), when the poor person was to be supported at the expense of the town sending him. If temporary relief only was sought, only ten dollars a year could be expended on one poor person or family, without the written sanction of the superintendent. Section 42. If there was no further legislation, it would have been the duty of the overseer to have sent the children to the poor house.

By chapter 61, Laws of 1852, the legislature conferred power on the overseer of the poor in those counties where there was no county orphan asylum, to place the children in any incorporated orphan asylum in the county at the expense of the town to which they were chargeable.

The power of choice in the overseer was taken away by chapter 438, Laws of 1884, § 2, and it was made unlawful for overseers to send any child between the age of two and sixteen years, to any county poor house, but made it their duty to provide for them in incorporated asylums for the care of orphans, and provided for or placed in such asylum or such other institution as shall then be conducted by persons of the same religious faith as the parents of such child.”

The relief of the children was permanent and not temporary. The ten dollar limitation does not apply to them. The plaintiff’s employment was made by an officer, who had full power, and who was compelled to furnish the support outside of the poor house and in an incorporated orphan asylum. The plaintiff fills every requirement of the law so far as is disclosed by the evidence, and the plaintiff should have judgment on the verdict, with costs.

Dykman and Pratt, JJ., concur.  