Foster v. . Cronkhite

35 N.Y. 139

• Court: New York Court of Appeals
• Decided: March 5, 1866
• Status: Published

Opinions

The plaintiff is superintendent of the poor of the county of Fulton, and the defendants are superintendents of the poor of the county of Warren. This action is brought pursuant to the statute, to recover of the defendants the expenses to which the county of Fulton has been subjected, in maintaining and supporting three paupers claimed to have been removed from the county of Warren to the county of Fulton, in contravention of the provisions of section 81 of the Revised Statutes, relating to the support of the poor. (2 R.S., 5th ed., p. 853.)

This section declares that any person who shall send, carry, transport, remove or bring, or shall cause to be sent, carried, transported, brought or removed, any poor or indigent person, from any county to any other county, without legal authority, and there leave such person, with intent to make any such county to which the removal shall be made chargeable with the support of such pauper, or who shall entice any such poor person so to remove, with such intent, shall forfeit fifty dollars, and shall be deemed guilty of a misdemeanor.

The 82d section declares that the pauper so removed shall be maintained by the county superintendents where he may be. It then provides for giving notice to the superintendents of the county from which the pauper was brought or enticed; and the 83d section declares, that the superintendents receiving the notice shall, within thirty days, take back the pauper so removed, and support him, and pay the expenses of the county to which he had been removed, or shall give a notice, denying the allegations of such improper enticing or removal.

Section 84 provides that if there shall be a neglect to take and remove such pauper, and to notify such denial, then the superintendents shall be deemed to have acquiesced in the allegations of the notice, and shall be liable for the expenses of the support of such pauper; and by section 85, it is provided that if the allegations of such notice are denied, then a suit may be instituted to recover the expenses incurred in the support of such pauper. It is in pursuance of this section that this action has been commenced. It was admitted on the trial, that the plaintiff had duly served notice and demand in writing on defendants, under the statute in such cases provided, before the commencement of this action, and defendants had duly served notice of denial, and which notices were produced and proven.

The referee who tried the action found the following facts: That in the forepart of December, 1861, and until January 13, 1862, Samuel Ward, Esther Ward his wife, and Miles Ward, their infant son, were poor and indigent persons, and inhabitants and residents of the county of Warren, in this State, and while so residing were relieved and supported in and at the expense of the county of Warren, and by defendants as superintendents of the poor of the said county, as paupers at the county poor house, and so continued to be supported until they left the said poor house; that said paupers left the said poor house on the 13th day of January, 1862, and went to the town of Bleecker, in the county of Fulton, arriving at the said town of Bleecker on the 24th of January, 1862; that the means and money requisite for the removal of the said paupers from the said county of Warren to the county of Fulton were furnished by Stephen Griffin, 2d, one of the said defendants, and the amount so furnished was $13.50; that said Stephen and other persons aided and assisted the said removal; that on the 31st of January, 1862, said Ward applied to the plaintiff as such superintendent for maintenance for himself, wife and child, as paupers, and they have ever since been maintained as such by the county of Fulton at the poor house and other places in said county, and that the expenses so incurred amounted to the sum of $63.38 at the time of the commencement of this action; that all the steps requisite and necessary to be taken to charge the said defendants for the expenses incurred, in pursuance of the provisions of the Revised Statutes, if the said removal of the said paupers to the county of Fulton was with the intent of making the county of Fulton chargeable with the support of said paupers, had been complied with.

He also found, as matter of fact, that a short time before the said paupers left the said poor house of Warren county for the said county of Fulton, the said Ward represented, in substance, to the said Stephen Griffin, 2d, that he desired to leave said poor house and remove himself, wife and child to Upper Canada, where, as the said Ward represented, he had a home, property and friends, and that he desired some ten or twelve dollars to carry himself, wife and child to Fonda, in the county of Montgomery, where, he also represented, he had children who would assist him to money to go to his home in Canada.

That the money and means so furnished by the said Stephen Griffin, 2d, were furnished by him on account of such representations, and under the belief that the said Ward would, on his departure from said poor house, go with his said wife and child to the village of Fonda, and from there would go with his wife and child to Upper Canada. And that neither said Stephen Griffin, 2d, or the other defendants, or any of the other persons who aided and assisted in the removal of the said paupers from the county of Warren to the county of Fulton, did so with the intent of making the county of Fulton chargeable with the support of the said paupers, or either of them. And he found, as a conclusion of law, that no cause of action existed against said defendants, and he thereupon gave judgment for the defendants, which, on appeal, was affirmed at the General Term.

Upon the facts found by the referee, it is very clear that, if we adhere to the construction which these provisions received in the Supreme Court of this State more than twenty-five years since, the judgment rendered in this case must be affirmed. The case of Coe v. Smith, reported in 24 Wend., 341, is very like the one now under consideration, and the ruling in that case is decisive of this. It was an action under the same provisions of the Revised Statutes, by Coe and others, superintendents of the poor of the county of Genesee, against Smith and others, superintendents of the poor of the county of Allegany, to recover the expenses of a pauper, claimed to have been removed from the county of Allegany to the county of Genesee, with the intent to make the county of Genesee chargeable with the support and relief of the said pauper.

The judge charged the jury, that if there had been any interference by others, or if the pauper had received the aid or assistance of any person in his removal from Allegany to Genesee, the defendants were liable; that it was wholly immaterial as between the parties to the suit, who had procured such aid or assistance, what motive or with what intent it had been procured or rendered; that the evidence fully established a sending and transportation of the pauper, within the meaning of the statute; and that there was no question for them to determine upon, except the amount of the recovery. The jury found for the plaintiff, and upon a motion for a new trial, the same was granted. NELSON, Ch. J., in the opinion of the court, said: "From an attentive consideration of these provisions of the statute, it appears obvious to me, that a removal of the pauper which will charge the county with the expenses of his maintenance, must be such as would subject the person concerned in it to the penalties imposed by the 63d [81st] section of the act. This is clearly the removal referred to throughout the several provisions on the subject, and which the defendants were required to deny. The plaintiffs were to give notice to the superintendents of the county from which the pauper was brought or enticed, informing them of such improper removal, and they are to deny the allegation of suchimproper enticing or removal. This is the preliminary issue raised between the parties before the commencement of the suit."

The learned chief justice very conclusively answers an argument, now urged upon us, with force and elaborate illustration. It is, that the legislature intended to prohibit a destitute person, or one who happened to be disabled, while temporarily residing in one county from returning to his family and friends residing in another, though he might choose to do so of his own mere motion; and as a matter of course to charge the county from which he thus removed with his support. He says: "This seems to me a forced and unreasonable construction, and overlooks the intent of the removal, which is made an essential ingredient to constitute the offense within the act, and is, I think, equally necessary to create the legal liability in the civil suit." I understand the learned counsel for the appellant to concede, that to subject a party to criminal liability under the provisions of section 81, it must be charged and established that the person guilty of bringing or enticing the pauper into a particular county did sowith the intent to make such county chargeable with the support of such pauper. But it is urged that the intent to subject the county to the support of the pauper is not needful to be shown, where the action is to charge the county from which he came with the expenses incurred by the county to which he came.

It is claimed that, if the removal took place "without legal authority," without any reference at all to the question of intent, that the liability in the civil action is established. But a careful examination of the provisions of the different sections, as was demonstrated in the case of Coe v. Smith (supra), will show that this argument, however ingeniously presented, cannot be maintained. As already observed, it cannot for a moment be doubted that the intent with which the removal was effected is the gravamen of the criminal offense.

The language of the other sections will be found, on examination, equally imperative in requiring that the intent with which the removal was effected is an essential ingredient in ascertaining the liability of the county from which the pauper removed.

Section 82 requires, as a preliminary step to fix that liability, that the officers of the county claiming to fix it upon another county, shall give notice to the appropriate authority of the latter county, "informing them of such improper removal," and requiring them forthwith to take charge of such pauper. What is meant by the words used here, "improper removal?" Clearly such a removal as is spoken of in the 81st section, without legal authority, and with the intent to make the county chargeable where the pauper is left, with his support. And the 83d section provides for the denial of the allegation of the notice, and if the officers on whom the same is served shall contest this liability, they shall give notice that they deny the allegation of such improper enticing or removal. It is very apparent to my mind that the legislature, in passing these various provisions, had in mind, as applicable to all of them, and to the criminal as well as civil liability, the question of intent, influencing and governing those engaged in the removal of the pauper, and that the intent to charge the county where the pauper was left, was equally to be established in the one form of action as the other. The referee having found in this case, as a matter of fact, that neither of the defendants, or any of the other persons who aided and assisted in the removal of the said paupers, did so with the intent of making the county of Fulton chargeable with the support of the said paupers, or either of them, it follows that the conclusion of law at which he arrived was correct. If therefore, there was no error in the admission or rejection of evidence committed by the referee, the judgment rendered by him cannot be disturbed.

It remains to be considered, the several exceptions taken by the plaintiff to the rejection and admission of evidence. The first question to which our attention is called was this put by the plaintiff's counsel to Samuel Ward, one of the paupers alleged to have been improperly removed: "Where did Sandford Ward and you propose taking you and family with his team, when you so left Johnsburgh?" This was objected to by the defendants as irrelevant and immaterial and excluded, and plaintiff excepted. So far as the question sought to prove the purpose of Ward, it was subsequently established on the trial by the evidence of Ward himself, and therefore the plaintiff suffered no prejudice by the exclusion of the question. As to Ward himself, he had just testified that his purpose was to get to Johnstown, Fulton county, or to Canada, to live, and a repetition of the same inquiry as to him might well have been excluded by the referee. But a conclusive reason for the irrelevance of the question is, that it was wholly immaterial where Ward purposed taking the paupers, or where they intended going, if such removal was not with the intent of making them chargeable to the county where they were removed to. The question put did not seek to elicit this vital information, and I can see no prejudice which the plaintiff sustained by its exclusion.

The statements made by Ward, the pauper, to one of the defendants, as to his purpose in leaving Warren county with his family, and the place to which he intended going, were part of the res gestæ, and important in showing the intent with which the defendant aided him in his removal, and the intent to make the county to which he was about to remove, chargeable with his support. It was, therefore, most important to ascertain the motives with which the defendant aided and assisted in the removal of the paupers, and the declaration of the pauper Ward to him at the time, as to the place where he intended going, and the reasons therefor, were legitimate testimony on this point.

The objections to the evidence of the intent of those aiding in the removal are untenable, as such evidence was eminently pertinent. The real question, to determine the liability of the defendants, as has already been shown, was whether the removal was made with the intent to charge the county of Fulton with the support of the paupers. The objections to this testimony were properly overruled, and it was competent to prove the intent with which an act was done by those engaged in its performance. (Seymour v. Wilson, 4 Kern., 568.) The same remark may be applied to the question objected to, put to the witness Sandford Ward: Did you intend, in and what you did in assisting the Wards to remove from Warren county, to make them a charge upon and Fulton county liable to support them? The witness answered, I did not. For the reasons already stated, this inquiry was most pertinent; and the next question, as to the belief of the witness as to the intention of the paupers going to Canada, was for the same reason unobjectionable.

The inquiries made of Philemon Griffin, who was active in removing the Wards, were pertinent to the inquiry whether he aided in such removal with the intent of making the county of Fulton chargeable with their support. The same observations apply with equal force to the questions put to the witnesses Eldridge and Cronkhite, and the objections to such questions were properly overruled.

The referee also properly overruled the objection to the testimony of Griffin, one of the defendants, in which he stated the intentions of Ward as to his going to Canada and intending to remove there, and to his obtaining or expecting to get money from his relatives to go there. The expectations and intentions of Ward, and his declarations in respect thereto, as already observed, were part of the res gestæ, and the belief and intentions of the defendant were clearly admissible, and it was competent to show how they were influenced and created.

I see nothing material or important in the other objections to testimony admitted or excluded, needful to be commented upon, and am satisfied that no injustice has been done to the plaintiff in the admission or exclusion of any evidence.

As the judgment is clearly correct upon the facts found by the referee, I am of the opinion that the judgment should be affirmed, with costs.