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Onondaga Co. v. City of Amsterdam, 64 Misc. 181; 139 App. Div. 877, 883; 140 id. 916.

§ 55. Penalty for bringing foreign poor into this state. Any person who shall knowingly bring or remove, or cause to be brought or removed, any poor person from any place without this state, into any county, city or town within it, and there leave or attempt to leave such poor person, with intent to make any such county, city or town, or the state, wrongfully chargeable with his support, shall forfeit fifty dollars, to be re covered by an action in a court of competent jurisdiction in the county, and in the name of the county, city or town into which such poor person shall be brought, and shall be obliged to convey such person out of the state, or support him at his own expense, and shall be guilty of a misdemeanor, and the court or magistrate before whom any person shall be convicted for a violation of this section shall require of such person satisfactory security that he will within a reasonable time, to be named by the court or magistrate, transport such person out of the state, or indemnify the town, city or county for all charges and expenses which may be incurred in his support; and if such person shall refuse to give such security when so required, the court or magistrate shall commit him to the common jail of the county for a term not exceeding three months.

Overseers of the poor, who have expended money, under an order for the maintenance of a pauper, cannot maintain an action on the case against the person who brought the pauper into the town, having no legal settlement in the state, for the amount so expended; but their remedy is under the statute to recover the penalty given in such case. Supreme Court, May, 1814, Crouse v. Mabbett et al., 11 Johns. 167.

The penalty given by statute for bringing a poor, or indigent person, not having a settlement, into any city or town within this state without legal authority, is incurred as well by bringing such person from one town to another town within the state, as by bringing him from without the state. To subject a party to the penalty, it must be shown that he acted mala fide; it seems,

that carriers of passengers are within the letter, but not within the spirit of the act, and cannot be charged, unless in bringing poor and indigent persons into a city or town, and leaving them there, they acted fraudulently. Proof by an inhabi. tant long a resident in the town, that he had never known the pauper, is prima facie sufficient evidence that the pauper has not a legal settlement in the town. Supreme Court, May, 1832, Thomas v. Ross & Shaw, 8 Wend, 672.

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$ 56. Poor children under sixteen years of age. No

justice of the peace, board of charities, police justice, or other magistrate, or court, shall commit any child under sixteen years

of

age, as a vagrant, truant or disorderly person, to any jail or county almshouse, but to some reformatory, or other institution, as provided for in the case of juvenile delinquents; and when such commitments are made, the justice of the peace, board of charities, police justice, or other magistrate or court making the same, shall immediately give notice to the superintendents of the poor or other authorities having charge of the poor of the county in which the commitment was made, giving the name and age of the person committed, to what institution, and the time for which committed; nor shall any county superintendents, overseers of the poor, board of charity, or other officer, send any child under the age of sixteen years, as a poor person, to any county almshouse, for support and care, or retain any such child in such almshouse, but shall provide for such child or children in families, orphan asylums, hospitals, or other appropriate institutions for the support and care of children as provided by law, except that a child under two years of age may be sent with its mother, who is a poor person, to any county almshouse, but not longer than until it is two years of age. The boards of supervisors of the several counties, and board of estimate and apportionment of the city of New York, and the appropriate board or body in other cities and towns shall take such action in the matter as may be necessary to carry out the provisions of this section. When any such child is committed to an orphan asylum or reformatory, it shall, when practicable, be committed to an asylum or reformatory that is governed or controlled by persons of the same religious faith as the parents of such child. When any child who shall have been placed in an asylum, or other institution, as a poor person, in pursuance of this section, shall remain therein at the expense of the county or town to which such poor child is chargeable, the superintendents of the poor of such county, or the overseer of the poor of such town, may remove such child from such asylum or other institution and place such child in some similar institution or make such other disposition of such child as is provided by law.,

(As amended by chapter 347 of the Laws of 1909.)

This action was brought by the plaintiff, a corporation organized under the laws of this State for the care, education and support of poor orphan children, to recover the amount due it for supporting certain children between the ages of two and sixteen years, residents of Long Island City, and whom it had received, cared for and supported, on authority of written orders given by the overseer of the poor of the defendant city.

Held, that the plaintiff was entitled to recover, as it had acted under the direction of an officer, who had full power to give such direction, and who was compelled by law to furnish the support for such children outside of the poorhouse, and in an incorporated orphan asylum.

That, as the relief of the children was permanent and not temporary, the $10 limitation imposed by section 42 of 2 Revised Statutes (7th ed., page 1861), did not apply to them. Supreme Court, May, 1888, Nuns of St. Dominick v. Long Island City, 48 Hun, 306.

Relator was a charitable institution incorporated under chap. 319, of 1848, and having the approval of the state board of charities under chap. 446, of 1883. Under the statutes and by commitments not in all respects perfect, children were sent to relator and its bills therefor audited by the supervisors; the defendant, county treasurer, refused to pay. Held, that the bills were a county charge and that the court would not here scrutinize the commitments with that care which it would exercise if the proceedings were a habeas

corpus

and the commitment were claimed to be illegal or insufficient. Supreme Court, July 7, 1890, People ex rel. Mt. Magdalen School v. Dickson, 32 St. Rep. 495; 57 Hun, 312; see In re Jurisdiction, 3 How. Pr. 39, 43, 44.

Homes for children not compelled to receive children committed to them.Support a charge against locality liable, and may be enforced by legal procedure.

STATE OF NEW YORK,
ATTORNEY-GENERAL'S OFFICE,

ALBANY, February 6, 1907. Hon. ROBERT W. Hill, Acting Secretary, State Board of Charities :

DEAR SIR.—Your favor of the 14th ultimo, asking an opinion on certain questions propounded to you in a letter from Mr. Charles B. Mason of the Board of Managers of the House of the Good Shepherd, Utica, inclosing a copy of such letter and articles of incorporation of that institution, is received.

In reply I inform you as follows:

From the articles of incorporation of the House of the Good Shepherd, filed February 10, 1872, it appears that the incorporators desired “to associate themselves together for benevolent, charitable and mission purposes; also, that “the particular business and object of this society shall be the care, maintenance and instruction of friendless, neglected and destitute chil. dren of the Diocese of Central New York of the Protestant Episcopal Church, and shall be carried on in Utica, Oneida county."

The statute permitting the organization of such society was chapter 319 of the Laws of 1848, which provided that any tive or more persons, citizens of the United States, might incorporate themselves for benevolent, charitable, scientific or missionary purposes.

The first question is as follows:

“ Is the House of Good Shepherd compelled to take all children who are committed to it who are not committed under the provisions of the

Penal Code or the Compulsory Education Law?” The cases referred to in the question would be those arising under the provisions of the Poor Law, section 20, chapter 225, Laws of 1896, wherein it is provided that an overseer shall by written order cause such poor person to be relieved and provided for as the necessities of the applicant may require.

Such cases might also arise under chapter 438 of the Laws of 1884, wherein it is provided by section 1 that the custody of any indigent child may be committed to any incorporated orphan asylum or other institution incorporated for the care of orphan, friendless or destitute ohildren by an instrument in writing signed by the parents of the child and by the mayor of a city in or the county judge of the county in which such institution shall be located. While this disposition is called a commitment of the child it is, nevertheless, one which is arranged for by contract between the officers of the institution and the parent or proper public authority, as the case may be.

Under section 2 of the same act it is provided that county superintendents and overseers of the poor, boards of charities or other officers shall provide for children between the ages of two and sixteen as paupers in orphan asylums or other appropriate institutions.

Under both sections cited the reception of the child by such institution is not made compulsory and it is undoubtedly optional with the managers of the institution to receive any such children as they may deem wise.

Your attention is also called to the fact that the Penal Code, section 291, subdivision 5, in reference to the commitment of children to any incorporated charitable, reformatory or other institution, does not make the reception of children committed thereunder compulsory upon the institution. So, also, section 9 of the Compulsory Education Law, in reference to the commitment of truants to orphan homes or similar institutions, does not make the reception of such children compulsory upon this institution. Your second question is:

" Whether or not the institution named is compelled to take children from any county within the State; or if only from certain counties, then

what counties?The terms of the articles of incorporation limit the right of the society territorially not to counties as such, but to the maintenance and instruction of friendless, neglected or destitute children of the Diocese of Central New York of the Protestant Episcopal Church. The third question is:

" Supposing the institution is not full, can the management arbitrarily refuse admission or must they give some good reason therefor?” It is apparent from the statute under which this institution is organized and under its articles of incorporation that it was a purely voluntary association to subserve charitable purposes, carried on through private support, and that, therefore, its activities may properly be limited by the judgment and discretion of its board of managers. It would follow from this that

its management may act upon its own judgment as to the number of inmates it will undertake to care for.

The fourth question, as to what will constitute good reasons or causes for refusing to receive children is hereby covered. The fifth question is:

" In case a county does not pay or refuses to pay for a child who has been properly committed from that county, what are the remedies of the institution?”

If the support of any inmate received is a charge against a particular county the audit and payment of proper bills therefor may be enforced by appropriate legal proceedings against that county.

Yours truly,
WILLIAM S. JACKSON,

Attorney-General.

§ 57. Recovery from pauper who has property. If it shall at any time be ascertained that any person, who has been assisted by or received support from any town, city or county, has real or personal property, or if any such person shall die, leaving real or personal property, an action may be maintained in any court of competent jurisdiction, by the overseer of the poor of the town or city, or the superintendent of the poor of any county which has furnished or provided such assistance or support, or any part thereof, against such person or his or her estate, to recover such sums of money as may have been expended by their town, city or county in the assistance and support of such person during the period of ten years next preceding such discovery or death.

ARTICLE 5

Support of Bastards

Section 60. Penalty for removing mother of bastard; how sup

ported after removal. 61. Mother and child poor persons; proceedings against

county or town from which she was removed. 62. Mother and bastard; how to be supported. 63. Mother and child not to be removed without her

consent. 64. Overseers to notify superintendents of cases of bas

tardy; when county chargeable. 65. Duty of superintendents to provide for mother and

child.

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