Alphonso Stone, Superintendent of the Poor of Cortland County, Respondent, v. Lewis A. Burgess, Appellant

Alphonso Stone, Superintendent of the Poor of Cortland County, Respondent, v. Lewis A. Burgess, Appellant. In proceedings under title 1, chapter 20, part 1 of the Revised Statutes (1 R. S., 614), for the relief and support of indigent persons, the Court of Sessions is authorized by section 4, in case one of two persons equally liable is unable to contribute his entire proportion of such support, to require him to contribute according to his ability, and to require the other to pay the residue. An order reciting that the two are of sufficient ability, and directing the proportion each one is to pay, if the proportion is unequal, is in effect, a determination that the one required to pay the less sum is unable to pay his full proportion, but is able to pay the sum fixed, and such order is valid. (Argued February 12, 1872; decided February 20, 1872.) Appeal from judgment of the General Term of the Supreme Court in the sixth judicial district affirming a judgment entered upon a verdict for plaintiff. The action was brought to recover an amount directed to be paid by the defendant, by an order of the Court of Sessions of Cortland county, providing for the support of the aged father of defendant. The order was made in proceedings under 1 B. S., chap. 20, title 1. It requires the defendant to pay to the plaintiff, as superintendent of the poor, the sum of $1.91 each week from the' date of the order, to be applied to the support of defendant’s father, and the further sum of $19.09, being defendant’s proportion of costs. It also requires that defendant’s brother, Moreau D. Burgess, shall pay for the support of his aged father the sum of $1.09 per week, and the sum of $10.91 for his proportion of-costs. Due service of the notice for the application, and the m aking of the order, and the service of the order on the defendant were admitted. The plaintiff placed the matter in the hands of the overseer of the poor, who, with plaintiff’s consent and approval, made a contract with defendant and his brother relative to the support of the father. The two brothers agreed to take their father and support him in the proportion mentioned in the order, each to pay the other as follows, to wit: Defendant to pay Moreau $1.91 per week when his father was at Moreau’s house, and Moreau to pay defendant $1.09 per week when his father was with defendant. The father was to stay with Moreau until defendant got ready for him, and defendant was to give thirty days’ notice whenever he was ready. Defendant paid Moreau $7.65 for the first thirty days, and notified Moreau that he was ready to-take his father to hoard. It was conceded that the amount of costs by the terms of the order of the Court of Sessions is $19.09, and the interest thereon $1.45, and the amount which would have been due by the terms of the order from defendant is $40.12. Total $69.66. And deducting the $7.65 paid by defendant would leave a balance of $62.01. The court charged that the plaintiff was entitled to a verdiet for $62; to which direction and charge defendant excepted. The jury found for the plaintiff in accordance with the charges. Defendant asked the court to submit to the jury the question whether the contract was not fulfilled on the part of the defendant. The court refused so to charge, and defendant excepted. Defendant also asked the court to charge that the defendant was not liable in this action for costs upon the other. The court refused so to charge, and the defendant excepted. Defendant also asked the court to submit to the jury, whether the fair interpretation of the contract was not that the defendant could keep his father at the end of thirty days in full satisfaction of the terms of the order. The court refused so to charge, and defendant excepted. Defendant applied for a new trial at the General Term, which was denie°d, and thereupon appealed to this court. A. J. Parker, for appellant. The order is of a court of limited jurisdiction acting under special statutory authority; the jurisdiction must appear on the record. (Trustees v. Ford, 2 Seld., 178; 4 Dallas, 8 ; 2 Lans., 71; 1 Seld., 106 ; 5 Abb., 141; 22 Barb., 323, 271; 2 Kern., 578; 40 N. Y., 97; 1 Seld., 164, 381; 16 N. Y., 180.) In either of the cases cited in section 4, the inability is a jurisdictional fact, and must be recited in the order. (2 Lansing, 81; 2 Seld., 176, 178.) H. Ballard, for respondent. Code, section 2, gives the right of action for the costs; so does the common law. (Burrill’s Prac., volume 1, page 24, sub., debt; Platt v. Sherry, 7th Wend., 236; Scidmore v. Smith, 13 John., 322; Colden v. Eldred, 15 id., 220.) [MAJORITY — Grover, J.] Grover, J. The counsel for the appellant insists that the order of the Court of Sessions is void upon its face, for the reason that it requires the appellant to pay weekly tor the support of his indigent father the sum of one dollar and ninety-one cents per week, while it requires his brother to contribute for the same purpose the sum of one dollar and nine cents. Section 1, vol. 1, of the Eevised Statutes, 614, determines who shall be liable for the support of indigent persons. Section 2 provides the. mode of compelling the performance of this duty in case of failure of voluntary performance. Section 3 prescribes the manner of the hearing of the application by the court, and the order in which the relatives, being of sufficient ability, are required to provide for the support. Sec. 4 provides that if it shall appear that any such relative (referring to all the degrees) is unable wholly to maintain such poor person, but is able to contribute toward his support, the court may, in its discretion, direct two or more relatives of different degrees to maintain such poor person, and shall prescribe the proportion which each shall contribute for that purpose; and if it shall appear that the relatives liable as aforesaid are not of sufficient ability wholly to maintain such poor person, but are able to contribute something, the court, shall direct the sum, in proportion to their ability, which such relatives shall pay weekly for that purpose. The first clause of this section was intended to provide for cases where the relatives of the degree primarily liable, were able to contribute something, but unable wholly to support the indigent person, and in these cases the counsel concedes that the court has power to prescribe what sum shall be respectively paid by each. The second clause of the section provides for cases where any particular relative is unable wholly to support such person, or where one of several equally liable is unable to contribute his entire proportion of such support, but i,s able to contribute something, and authorizes the court m such cases to require such person to contribute in proportion to his ability. The order contains a recital that the appellant and his brother are of sufficient ability to support their father, and determines the sum necessary for such purpose is three dollars a week. That of this sum the appellant shall pay one dollar and ninety-one cents a week, and his brother one dollar and nine cents. This was, in effect, a determination that the brother was unable to pay his entire proportion, but was able to pay the sum fixed by the court. This was authorized by the statute. Had the brother been unable to contribute anything, the court might have required the appellant to pay the entire sum. The order was duly served upon the appellant, and payment demanded, which was refused. It is now insisted that the sum due upon the order could not be recovered, for the reason that it was agreed, with the consent of the plaintiff’s agent, between the appellant and his brother, that the latter should board their father, and receive therefor from the former one dollar and ninety-one cents a week while he kept him, and that the appellant might at any time take and board him.upon giving thirty days’ notice, and that he had given such notice. It appeared that the father had been kept a part of the time by a brother and a part of the time by a sister. The appellant had neither paid nor done anything toward his support. His promise so to do was not a satisfaction of the money payable upon the order. The judge was right in directing a verdict for the plaintiff for that amount, and the judgment of the General Term affirming the same must be affirmed with costs. All concur. Judgment affirmed.