
    County of Broome, Respondent, v. County of Cortland, Appellant.
    Third Department,
    December 30, 1912.
    Poor Law—temporary sojourn of poor person in other county — liability for support furnished.
    Persons who are natives of a town and reside there without material interruption have a legal settlement in the town and county under section 40 of the Poor Law, which continues until they gain a like settlement in some other town or city by a residence of a year.
    Hence, where such persons, being poor persons within the meaning of the statute, had left their native town and county but returned within one year, said county cannot, under section 51 of the Poor Law, charge the county to which they temporarily removed with support furnished. This because they did not come into a town or county not chargeable with their support, but on the contrary, came back to the county legally . chargeable therewith.
    Lyon, J., dissented.
    Appeal by the defendant, the County of Cortland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 16th day of February, 1912, upon the decision of the court rendered after a trial at the Broome Special Term.
    
      James F. Tobin, for the appellant.
    
      James K. Nichols, for-the respondent.
   Kellogg, J.:

Oscar Austin and his family of four children were natives of Lisle, Broome county, and resided there without material interruption until March 12, 1909. Therefore, they had a legal settlement in that town under section 40 of the Poor Law (Consol. Laws, chap. 42; Laws of 1909, chap. 46), and such settlement continued until they had gained a like settlement in some other town or city by a residence of a year. (Id. §40.)

Prom about March 12, 1909, to" about the middle of October, 1909, they resided in the county of Tioga, and from the latter date. until the family returned to Lisle, about May, 1910, they resided in Cortland county. They had not received any aid from the poor authorities of Tioga or Cortland counties, and the going from Tioga to Cortland county and from Cortland county to Lisle were, entirely voluntary acts upon their part.

Section 42 of the Poor Law requires that this family be supported by the town of Lisle or the county of Broome, the place where they were when they applied for relief. Section 51 provides that if a poor person, is removed, or comes from a city, town or county into any other city, town or county “not legally chargeable with his support,” he shall be maintained by the superintendent of the county where he may be, and then provides for giving notice to a town or city or county which it is claimed is liable under the law for the support of the poor person. This" section does not apply to this case, as the Austins in returning to Lisle did not come into a town or county not chargeable with their support, but came to the county legally chargeable with their support.

County of Delaware v. Town of Delaware (105 App. Div. 129) and like authorities do not apply to this case. They proceed upon the theory that section 51 of the Poor Law furnishes no remedy over against the town where the poor person had a legal settlement unless the person was a poor person when he came into the county actually furnishing the relief. That case, does not affect the question as tó which county is primarily liable for the support of the poor person; but as the statute requires the person to be supported in the town where he is, and only-protides a remedy over in case the person coming into the county was a poor person when he came, it held that there could be no recovery. But here the town of Lisle or the county of Broome was legally chargeable with the support of the family when the relief was granted. Section 51 gives plaintiff no right to recover over, and as the burden rested upon the town of' Lisle or Broome county, the county of Cortland is not liable.

We have not discussed the facts as to the situation of the Austin family, hut have so far treated the case as one of law. As a matter of fact, however, we are satisfied that the family of Oscar Austin were poor, shiftless and improvident, and were considered fair subjects for charity and treated as such before they left Broome county, and that they were really poor persons within the meaning of the statute when they came to Tioga and Cortland counties.

The judgment is, therefore, reversed upon the law and the facts. The particular findings of fact disapproved of are the second, third and fourth, and judgment is directed in favor of the defendant in the court below, with costs and with costs of this appeal.

All concurred, except Lyon, J., dissenting.

Judgment reversed upon, the law and facts. The particular findings of fact disapproved of are the second, third and fourth. Judgment is directed in favor of the defendant in the court below, with costs and with costs of this appeal.  