Stone v. Burgess

By the Court

The presumption from the order of the Court of Sessions is, that three of the five children of James Burgess were unable to contribute toward his support, and that' the defendant ought to pay more for that purpose than his brother, Moreáu D. Burgess, by reason of a difference in their abilities.

*443Ho question, was raised on the trial as to the validity or regularity of the order; hut it is now claimed by the defendant’s counsel that the order was void, because it did not require all the five children of James Burgess to relieve and maintain him, and for the reason that it compelled two of his relatives of the same degree, namely, two of his sons, to contribute unequally for his maintenance.

James Burgess, being old and decrepit, so as to be unable by work to maintain himself, it was the duty of his children, who were of sufficient ability, at their own charge, to relieve and maintain him in such manner as should be approved by the overseer of the poor of the town of Marathon, where the old man, James Burgess, was. (1 R. S., 614, § 1.) In those counties where all the poor are a charge upon the county, the superintendents of the poor are to act instead of the overseers of the poor. (Id., p. 616, § 13.) And it is proper to infer that all the poor in Cortland county are a charge upon' that county, for the reason that the superintendent procured the order in this case and brought this action, and no objection has been taken that the overseer of the poor of Marathon should have obtained the order- and brought the action instead of the superintendent; (See 1 R. S., 615, § 7)

The right to apply to the Court of General Sessions of the ¡Peace of Cortland county for an order, and of that court to make one, and require the children of James Burgess, against whom the order was made, to pay the costs and expenses of the application, was conferred by sections 2, 3, 4, 5 and 6 of the Revised Statutes. (1 R. S., pp. 614 and 615.) By section 3, the Court of Sessions “ shall order such of the relatives aforesaid of such pool- person as appear to be of sufficient ability to relieve and maintain such person, and shall therein specify the sum which will Be sufficient for the support of such poor person, to be paid weekly.” Section 4 authorizes the Court of Sessions to “ direct two or more relatives of different degrees to maintain such poor person,” and to “ prescribe the proportion which each shall contribute for that purpose.” That section also authorizes the Court of Sessions, *444when it shall appear that the relatives liable to maintain a poor person are not of sufficient ability wholly to maintain such poor person, but are able to contribute something, to direct the sum, in proportion to their ability, which such relatives shall pay weekly for that purpose. And I must say that a careful reading of all the statutes referred to, satisfies me that the order of the Court of Sessions in this case was valid; and the evidence shows it was obtained upon due notice, and that it was.in all respects regular. ■ It was duly served on the defendant and his brother, Moreau D. Burgess.

The statutes expressly authorize the plaintiff to maintain this action, to recover the sum the order required the defendant to pay weekly, for the support of his father. (1 R. S., 615, §7; id., 616, §13.)

The Court of Sessions is authorized to enforce the payment of such sum, and the payment of the, costs and expenses of the application for the order, “ by process of attachment.” (1 R. S., 615, § 6.) But neither section 7 nor section 13, above cited, authorizes the recovery of such costs and expenses by action. , The order, however, respecting such costs and expenses, was equivalent to a judgment that the defendant pay $19.09 to the plaintiff, within ten days after service of a copy thereof. . And I am of the opinion that sum could have .been recovered in the old action of debt. (See 1 Cow. Tr., 2d ed., 38 to 41; Gra. Pr., 2d ed., 84.) And I am unable to see any valid objection to the recovery of, such costs and expenses in this action under the Code.

The only other question in the case, is whether the defendant established a defence to the recovery of the $1.91, which the order required him to pay weekly, to be applied to the relief and maintenance of his father. The statute is, if any relative, who. shall have been required by such order to relieve or maintain any poor person, shall neglect to do so, in such manner as shall be approved by the overseers of the poor of the town where such poor person may be, and shall neglect to pay to such overseers (in . this case the superintendent) weekly, the sum prescribed by the court for the *445support of such poor person,” the action may be maintained. (1 R. S., 615, § 7; id., 616, § 13.) How, as I understand the evidence in the case, the plaintiff recovered the weekly sum, only for the time the defendant did not relieve or maintain his father, prior to the commencement of the action. And the statute makes him liable to pay the sum of $1.91, weekly, as fixed by the order, for every week he neglects to relieve or maintain his father. It also makes his brother, Moreau D., liable to pay the sum of $1.09 weekly, as specified in the order, for each week he neglects to relieve or maintain his father. The order fixed the expense weeldy, of relieving, and maintaining James Burgess, at three dollars; and the liability of the defendant, and of Moreau D., to contribute toward that expense, is several, and not joint. It is not necessary, that both of them should neglect to relieve or maintain their father, to render the one who does not relieve, or maintain him, liable to pay the sum the order requires him to pay for that purpose. The statute is, “ if any relative,” etc., shall neglect, etc., the action nlay be maintained against him, provided he does not pay the sum weekly prescribed by the court. (1 R. S., 615, § 7.)

If the foregoing views are correct, no error was committed on the trial, and the judgment in the action should be affirmed with costs.

So decided.