
    In the Matter of the Application of William Weaver, Superintendent of the Poor, App’lt, v. Hiram Benjamin, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Poob—Support by relatives.
    The court of sessions has no power in a proceeding under title 8 of part 6 of the Code of Criminal Procedure, to prescribe- the place where the poor person shall be supported, nor any of the conditions of such support, except that the manner of it shall be such as shall be approved by the superintendent of the poor. The provisions of the Revised Statutes requiring the removal to the county house of all persons requiring permanent relief or support do not apply to such a case.
    Appeal from an order of the court of sessions of Allegany county denying the application of the superintendent of the poor ■of that county to modify an order of that court, previously made, .for the support of Jemima Benjamin.
    
      D. Dickson, for app’lt; C. D. Farnham, for resp’t.
   Dwight, P. J.

The proceeding was instituted under the provisions of title 8 of part 6 of the Code of Criminal Procedure (§ 914, et seq.), to compel the children, two sons and a daughter, •ot Jemima Benjamin, to support their mother. Only the son Hiram Benjamin appeared to answer the application, and upon his '■consent in open court an order was made that he pay to the superintendent the poor the sum of two dollars per week for the support of his mother so long as she should remain in the county poor house, or until the further order of the court. The order recited, among other things, that the distinction between town and county poor had been abolished in Allegany county, and that the expense of maintaining all the poor of the county was a ■county charge, and that the county had provided and then had a poor-house ór alms-house for the reception of its poor.

A few months later, Mrs. Benjamin, in the meantime, not 'having been removed to the poor house, the superintendent made a further application to the court, stating that he “ had found such ■order impracticable and unfit to meet the needs, comfort and contentment of said Jemima Benjamin,” and asking that the order might be set aside or modified “ so far as it limits the place of ¡support to be at the alms or county house." The court entertained the application and, after hearing counsel, held and decided “ that the court has no power to direct the payment of money for the support of said Jemima Benjamin at any other place than the county alms house,” and upon this- ground alone denied the application to set aside or modify the order already made.

In this determination it seems to us very clear that the learned -court of sessions fell into the error of limiting its own powers in .a proceeding of this character by the law which prescribes the powers and duties of the superintendent, or overseer of the poor, in respect to the support of paupers or persons who have become .a charge upon the county, or the town, in which they may be. It is to cases of the latter character that the provisions of the Revised Statutes relate which require the removal to the county poor house of all persons requiring permanent relief or support, ■and who can be safely so removed. 1 R. S., 624, § 39 (Birdseye, 2261, § 28); People v. Com’rs of Emigration, 27 Barb., 562 ; Gallup v. Bell, 20 Hun, 172. But it is manifest on the face of the .statute under which this proceeding is taken that those provisions have no application here. This statute (title 8, part 6, of the ■Code of Grim. Pro.) provides a particular scheme for the support .and maintenance of a particular class of persons unable to maintain themselves, viz., of persons who have relatives within prescribed degrees who are of 'sufficient ability to relieve and maintain them. The first section of the title (§ 914) provides as. follows : “ The father, mother and children, of sufficient ability, of a poor person who is insane, blind, old, lame, impotent or decrepit, :so as to be unable to work to maintain himself, must at their own ■charge relieve and maintain him in a manner to be approved by the overseer of the town where he is.”

The next section (915) provides that “If a relative of the poor ■person fail to relieve and maintain him, as provided in the last -section, the overseer of the poor of the town where he is- * * "

may apply to the court of sessions of the county where the relative dwells [upon a notice prescribed] for an order to compel such relief;” and § 926 gives to the superintendents of the poor of those counties in which all the poor are a county charge the powers given to the overseers of the towns by the previous sections ■quoted. Other sections of the title prescribe the duty of the -court of sessions upon such application being made to it. Thus, § 916 provides that the court, after hearing the allegations and proofs of the parties, must order such of the relatives of the poor person mentioned in § 914, as were served with the notice .and are of sufficient ability, to relieve and maintain him, specifying in the order the sum to be paid weekly for his supportand § 918 provides that the order may specify the time during which the relatives must maintain the poor person, or during which any ■of the sums dii-ected by the court must be paid, or it may be indefinite or until the further order of the court. The court may, from time to time, vary the order as circumstances may require, on the application either of any relative affected by it, or of an ■officer on whose application the order was made”

This, then, is the particular scheme of the statute for the relief .and maintenance of a particular class of poor persons, viz. : who have relatives within prescribed degrees of sufficient ability to relieve and maintain them. It begins by laying upon those relatives the absolute duty, at their own charge, to support the persons described. Hot in the poor house, nor even through the agency of the poor authorities of town or county, but only in a manner to be approved by them ; and the further provisions of the statute relate to the means by which this duty shall be enforced. It is manifest that this particular scheme is outside of the general provisions of the statute for the care and relief of the poor who are, or who become a public charge. Its evident purpose is to prevent these persons from becoming a public charge, and, .as it seems to us, nothing is further from its intent than that they .should be made and marked as public paupers by being con.signed -to the poor house of the county.

But however this may be, and whatever might become the ■duty or discretion in this respect of the superintendent of the poor in case the relative required by the order'to relieve and maintain the poor person refused to do so, but in default thereof paid the weekly sum specified in the order, it is plain that the court of sessions had no power to prescribe the place where the poor person should be supported, nor any of the conditions of such support, except that the manner of it should be such as was approved by the superintendent of the poor. This is apparent from the ■reading of the statute quoted (supra)] and so the court said in Duel v. Lamb, 1 T. & C., 66-69, and added “ whatever power there is over that support is vested in the overseers or superintendents of the poor;. the sessions can only declare the duty to-support, and in default to fix the sum to be paid.”

It is very clear fhat the order which was sought to be set aside or modified went beyond the power of the court of sessions when it attached to the liability of the respondent to support his mother the condition that she should receive such support in the county poor-house. That order having been made on consent probably cannot be modified without consent, but it can be set aside, and the proper order made in accordance with the proofs to be taken.

The order appealed from should be reversed, and the-proceeding remitted to the court of sessions of Allegany county* with; directions to proceed therein.

So ordered, with costs to be paid by the respondent.

Macomber and Lewis, JJ., concur.  