THE COMMISSIONERS' ATTACHMENT

THE COMMISSIONERS’ ATTACHMENT. Court of Sessions for the County of New York; March, 1865. WABfiAMT AGAINST ESTATE OF ABSCONDING HUSBAND. A police justice of the city of New York has the same power to issue a warrant in that city, to the commissioners of public charities and corrections, against the estate of an absconded husband and father, aa two justices of the peace have in other, counties, to issue such a warrant to the overseers of the poor. Although a warrant may be issued in such a case against real property, as well as personal property, it cannot be sustained where the only interest of the absentee is a rem aind dependent upon an outstanding life estate, and there are no rents or profits accruing to him meanwhile. Attachment against the estate of an absconding parent. In February, 1865, upon proof presented by the wife of W. B. that her husband had absconded from her and her children, leaving them chargeable upon the public for support, Police Justice Ledwith, of the city of Hew York, issued a warrant under his hand and seal reciting the facts, and authorizing the commissioners of public charities and corrections to take and seize the goods, chattels, effects, things in action, and the lands and tenements of said W. B. wherever the same might be found in the county of Hew York, and directing them that they immediately make an inventory of the property so seized, and return the same, together with their proceedings thereon, to the next court of sessions of the county of Hew York. Under this warrant, the commissioners seized the interest of W. B., in the estate devised by his father, to his mother for life, remainder to W. B., his brothers and sisters. In February, 1865, the commissioners made the return as. directed by the warrant; and at the following, the March court of sessions, moved to confirm the seizure. Charles Henry Smith, for the estate, objected: (1.) That there was no power on the part of Justice Lbdwith alone to issue the warrant. (2.) That the commissioners had no power to execute such writ. (3.) The writ in question is void, even if Justice Lbdwith had power to issue the statute writ,—because is includes real estate, and choses in action. (4.) The court has nothing to act on, the inventory being only of real estate. James J. Thomson, for the Commissioners. I. The provisions of 2 Rev. Stat., 4th ed:, p. 10, ’§ 8, give two justices of the peace, upon due proof of facts, authority to issue a warrant authorizing ' the overseers of the poor to take and seize goods, chattels, effects, things in action, and the lands and tenements of an absconded husband or father. Police Justice Ledwith is the proper officer to grant the warrant, and a warrant issued by him alone is sufficient. 2 Rev. Z., § 24, p. 350, provides for the appointment of three special justices for preserving the peace in the city of New York; and § 41 (p. 354) of same act, invests them with the like powers as exercised by the justices of the peace in the different counties of the State. Justices of the peace were authorized in 1813, by act passed April eighth, to exercise a like power (See 1 Rev. Z., 284, § 22). In 1848, the special justices were abolished, and an act was passed, providing for the election of one police justice in each of the judicial districts of the city of New York, and investing them with all the power, and directing them to perform all the duties of the special justices, for preserving the peace in the city of New York (Laws of 1848, 250, ch. 103, § 7). By chapter 508 of the Laws of 1860, p. 1008, § 6, one police justice is authorized to act in all cases wherein it had theretofore required the action of two. II. The commissioners of public charities, &c., are the proper persons to conduct the proceedings, execute the warrant, and hold the property seized. By section 246 of the act, of 1813, ch. 86 (2 Rev. Z., p. 439), the mayor, &c., were authorized to appoint five freeholders to be overseers of the poor, who were to be denominated commissioners of the almshouse and bridewell of the city of New York, “ which said persons * * shall “ have the same power and authority * * for providing for “ the poor of the said city, * * and be subject to the same “ duties and penalties which the overseers in the respective “ towns in this State have been or are subject to. The commissioners of the almshouse and bridewell were abolished in 1849, and the board of ten governors appointed in their place. The ten governors were invested with all the power and authority by law conferred on and subjected to the duties imposed on the commissioners of the almshouse, the common council, and the board of supervisors, in respect to said department, and said institutions (See Laws of 1849, ch. 246, p. 367). The department of public charities and correction, the chief officers of which, who are to be styled commissioners of, &e., succeeded the ten governors—and the act creating them invested the commissioners with every power and authority conferred upon, and subjected them to all the duties imposed upon the former almshouse commissioners, or the board of ten governors, which may affect or .relate to the institutions, their ■officers or inmates, or the late almshouse department. The act abolishes the almshouse department (laws of 1860, 1026, ch. 510). The overseers of the poor of any city or town, by the act of 1813 (1 Rev. L., 286, § 22, passed April 8), had substantially the same authority in these cases as that conferred by the statute under which this proceeding is brought. The only cases bearing upon the practice in this proceeding that I have been able to find, are Downing v. Rugar, 21 Wend., 185; People v. Overseers of Triangle, 23 Barb., 236. [MAJORITY — Russel, J., Russel, City Judge.] Russel, J., without hearing farther argument, overruled the ■objections to the writ, and directed the inquiry and examination to proceed. The examination was then had; and by the counsel for the estate it was insisted that the interest of W. B. in the real ■estate could not be seized: it produced no rent, and was neither lands nor tenements. On behalf of the commissioners, it was urged that the statute authorizes the seizure of “ lands and tenements,” and the applications of rents if my. Suppose the estate to be houses and lots hot yet occupied, or tenantless, the commissioners would have a right to seize and hold these, and even rent them ; and by the same right, they have the power to hold the estate of the defendant seized by them. Again. The estate of the defendant is clearly within the common law definition of “ lands and tenements.” Lands “ comprehendeth in its legal signification any ground, or soil, or earth whatsoever, also houses md buildings ” (2 Bl. Com,., 17, 18; 3 Kent, 401). A tenement comprises everything that may be holden (3 Kent, 401). It is a word of greater extent than land : it includes not only lands, but rents, commons, and several .other rights issuing out of or concerning land (2 Bl. Com., 17, 18 ; 3 Kent, 401; 1 Steph., 158-9). Again. The defendant does not pretend that a vested remainder cannot be holden, or that he does not hold the fee of the real estate, subject to the life estate of his mother. Again. The statute is not punitive, but intended to indemnify the city against loss by reason of the supporting of persons who ought to be cared for by individuals, by the seizure of that individual’s property, and the devotion of the proceeds, or such part as shall be necessary, arising from the sale of personal,' and the rents, if any, arising from the real estate—to the support of the depend-ants. Russel, City Judge. This case comes before the court on an application under the statute (1 Rev. Stat., Edmond’s ed., 9, 10), to confirm the warrant and seizure of the justice, on the application of the commissioners of public charities and correction, against the estate of W. B., who had absconded from his wife, leaving her chargeable, or likely to become éhargeable, upon the public for support. The commissioners, in their return to the court, report that under and by virtue of the warrant issued by one of the police justices in the city of New York, they have taken and seized the interest of the said W. B., in certain real estate in the city of New York. In inquiring into the facts and circumstances of the case, it appears that the said W. B. has an interest in the real estate of which his father died seized, after the death of his mother, to whom, by the terms of his father’s will, it is given, with the rents, profits and increase during her life, and after her death it is to be divided equally among nine children. By the terms of the will, the said W. B., should he survive his mother, would be entitled to one ninth of the property;— should he not, it is directed that his children take his portion. Therefore, there being no personal estate seized, and only the estate dependent on the life of another, and there being no rents and profits coming to the said B. from the estate which can be applied towards the maintenance of his wife, the warrant and seizures are discharged.