City of Albany v. McNamara

• Decision Date: 26 November 1889
• Parties: CITY OF ALBANY v. McNAMARA.
• Court: New York Court of Appeals Court of Appeals

117 N.Y. 168

22 N.E. 931

CITY OF ALBANY

v.McNAMARA.¹

Court of Appeals of New York.

Nov. 26, 1889.

Appeal from supreme court, general term, third department.

Action by the city of Albany against John W. McNamara, executor of the estate of Mary E. Payne, deceased, for the support furnished the latter by plaintiff. From a judgment of the general term affirming a judgment entered on report of referee in favor of plaintiff, defendant appeals.

James F. Tracey, for appellant.

D. Cady Herrick, for respondent.

RUGER, C. J.

The material question in this case is whether a person receiving aid as a poor sick person from the officers of the poor in a city or county, in the absence of any representations as to his responsibility or physical condition, incurs a liability to repay the amount expended on his or her behalf by such city or county. The claim was that the plaintiff was entitled to recover of the defendant's testatrix an amount of money paid by it to the Albany Homeopathic Hospital for the care and maintenance of such testatrix as a poor person. The question arises in proceedings under the statute, upon a reference authorized by the surrogate, to determine claims against the estate of the testatrix. At the close of the plaintiff's evidence the defendant moved for a nonsuit, which was denied by the referee, and the defendant excepted. The motion was based upon the ground that no application or request for aid or assistance on the part of defendant's testatrix to the authorities of Albany had been shown, and that without such proof the action could not be sustained. This proof was essential upon the theory of the case presented by the plaintiff, and, not having been furnished, the exception to the refusal to dismiss the claim was well taken.

We might properly dismiss the discussion of the case at this point; but, as that would not wholly satisfy the object of counsel as exhibited by the argument, we have thought it proper to indicate our views as to the propriety of the action generally. The proof showed that the city of Albany had paid to the Homeopathic Hospital the sum of $538.28 for care and maintenance furnished to Mary E. Payne, under an order made by its overseer of the poor, directing the hospital to extend aid to her. There was no evidence that this order was issued upon the application of the testatrix, or of any one upon her behalf. It was proved that such applications were usually made, and also that such orders were sometimes issued without any applications. It is obvious that this claim, if supportable at all, must be so upon the principles which obtain in actions to recover back moneys paid and expended by one person for another. It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. 1 Pars. Cont. 471 et seq. In order to support such an action it is essential that a request on the part of the person benefited to make such payment, either expressed or fairly to be implied from the circumstances of the case, must be proved. Add. Cont. 1055; Wright v. Garlinghouse, 26 N. Y. 539;Wellington v. Kelly, 84 N. Y. 546. To bring itself within these rules, the respondent claims that the testatrix was legally liable to the hospital for the debt incurred for her board and maintenance, and that, inasmuch as the city had paid that liability upon the implied request of the testatrix, her estate is liable to the plaintiff for such payment. We are of the opinion that, under the circumstances of this case, no such liability was incurred by the testatrix to the hospital; neither is there any proof that she, directly or indirectly, requested the plaintiff to pay such liability or incur such expenses for her benefit. It is claimed that such request may be inferred from a presumption, applying to the acts of public officers, that they have performed such legal duties as the law imposes upon them, and that the law makes it their duty to make inquiries and afford aid to the poor sick. No such duty is expressly imposed by the statute, and, if it exists at all, it is itself an implication from the nature of the powers conferred upon them. It relates to a course of conduct, and not to any specific act, and is not such a specific duty as authorizes the application of the rule in question. Neither can such a presumption be indulged in as to a vital jurisdictional fact in favor of the officers, or the principal they represent, in an action which is founded solely upon the condition of a performance of duty by them. The...