
    The Board of Commissioners of Charities and Corrections of Kings County, Pl’ff, v. The Board of Supervisors of Queens County, Def’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    County—Support of prisoners.
    Under a contract made by two counties for the custody and support by the one having a penitentiary of criminals sent to it from the other for a specified compensation, a recovery cannot be had for the support of prisoners convicted of offenses punishable by imprisonment in a state prison, and sentenced to said penitentiary in accordance with law; there being no power in a county to make a contract for the support of such prisoners, who are a state charge.
    Submission of controversy without action.
    The board of supervisors of the county of Queens entered into a contract with the plaintiff in 1887, as follows :
    “ Witnesseth : Whereas, the party of the second part, for and in consideration of the moneys hereinafter mentioned, does agree to receive and safely keep, board and clothe, all such persons as shall be sentenced to be imprisoned by any court or magistrate in the said county of Queens, for any length of time not exceeding five years. All such persons so sentenced to be delivered into the custody of the keeper or warden of the Kings County Penitentiary by the sheriff of the said county of Queens, or by any other officer or constable of the said county of Queens, to wit:
    “ For all persons sentenced for a period of from six months to twelve months or over, one dollar and seventy-five cents per week.
    “ For all persons sentenced for a period of from three months to and under six months, two dollars per week.
    “For ¿ill persons sentenced for a period of from sixty days to and under three months, two dollars and twenty-five cents per week.
    “ The party of the first part doth hereby agree to cause to be conveyed to and delivered at the Kings County Penitentiary in the county of Kings, all persons who may be sentenced to be imprisoned therein for any length of time (not exceeding five years) for any crime or misdemeanor, and to pay the prices as hereinbefore stated for the board and maintenance of prisoners so sentenced and delivered to the care and custody of the keeper or warden of the Kings County Penitentiary in the said county of Kings, semi-annually.’’
    Bills were presented by plaintiff for the support of prisoners, which included prisoners convicted of crimes punishable by imprisonment in state prison, who were sentenced to the Kings County Penitentiary from Queens county, in accordance with chap. 247, Laws 1874, and chat). 571, Laws 1875. The question presented is whether, upon the foregoing facts, Queens county is liable to Kings county for the board and maintenance of prisoners convicted in Queens county of offenses punishable by imprisonment in a state prison and sentenced to the Kings County Penitentiary in accordance with law ?
    
      John A. Quintard, for pl’ff; Francis H. Van Vechten, for def’t.
   Barnard, P. J.

By the Revised Statutes all persons convicted for a criminal misdemeanor were to be imprisoned in a county jail where imprisonment was included in the sentence. 2 R. S. (3d ed.), 784, § 56.

The prisoners were to be supported in the jails by the several counties. Felonies were punishable by an imprisonment in the state prison and in no other place. Prisoners in the state prisons were to be supported by the state at large. This law has never been changed, and the support of convicts for felonies has never been put upon the counties. By chapter 158, Laws of 1856, convicts for felonies punishable by imprisonment in a state prison, between the age of sixteen and twenty-one, might be sentenced to a penitentiary in the judicial district in which the conviction was had. The cost of delivery of the convicts at the penitentiary was directed to be paid by the state treasurer. Chapter 247, Laws of 1874.

By chapter 574, Laws of 1869, in all counties having, a contract with the Albany penitentiary, state prison convicts could be sentenced to the Albany penitentiary without charge to either state or county.

By chapter 571, Laws of 1875, all sentences which could be punished by an imprisonment in a state prison of three years or less could be sentenced to a penitentiary in the judicial district. The comptroller of the state was directed to pay for the maintenance of these convicts.

By chapter 172, Laws of 1877, all females convicted of offenses punishable by imprisonment in a state prison were directed to be sent to the county penitentiary within the judicial district, and this law provided that the state comptroller should pay for the support of these convicts. It will be thus seen that no contract for the support of persons convicted of an offense punishable by imprisonment in a state prison was ever needed. The charge therefor was a state charge and nort a county one. The change in the place of detention of county jail convicts commences with chapter 139, Laws of 1858. By this act two counties were authorized to contract with the Albany penitentiary for the support of persons sentenced to imprisonment not less than sixty days; and by chapter 209 of the Laws of 1874 all counties might contract with a county having a county penitentiary for the support of prisoners convicted of a crime “ not punishable in a state prison.”

The power to contract with the plaintiff upon the part of Queens county, as to the support of prisoners punishable in a state prison, never existed. The contract must be held to be within the spirit of the law, which is to authorize Queens county to board its jail prisoners who are sentenced to detention over sixty days to be detained in a pententiary, where occupation will be furnished to the prisoners, and incidentally to compel the prisoner to earn his own support.

Judgment should therefore be given for the defendant upon the submitted case.

Dykman and Pratt, JJ., concur.  