City of Boston v. City of Chelsea

• Decision Date: 25 January 1962
• Citation: 179 N.E.2d 596,343 Mass. 499
• Parties: CITY OF BOSTON v. CITY OF CHELSEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 596

179 N.E.2d 596

343 Mass. 499

CITY OF BOSTON v. CITY OF CHELSEA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1961.

Decided Jan. 25, 1962.

William H. Kerr, Boston (Leo J. Dooley, Asst. Corp. Counsel, Jamaica Plain, with him), for plaintiff.

Eli H. Gartz, City Sol., Chelsea, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and SPIEGEL, JJ.

SPIEGEL, Justice.

This is a contract action brought to recover for old age assistance furnished by the plaintiff, city of Boston, from January 1, 1955, to January 16, 1955, to one Esther Braslowsky who is alleged to have had a legal settlement in the city of Chelsea during that period. The case was referred to an auditor whose findings of fact were to be final. The auditor filed a report in favor of the plaintiff. Judgment for the plaintiff was ordered on the auditor's report and the defendant appealed.

The following facts were found by the auditor. Esther Braslowsky resided in the city of Chelsea from 1938 to September 12, 1949. On that date she entered the Jewish Memorial Hospital in Boston where she remained until October 1, 1949. Thereafter she lived with her daughter at 32 Dennison Street, Roxbury district of Boston, until April 18, 1950, when she entered the Hebrew Home for the Aged, an incorporated charitable institution, located in the Dorchester district of Boston. She remained at the home until her death on January 16, 1955.

The defendant provided old age assistance to Esther Braslowsky from 1938 continuously through November 30, 1949. The plaintiff furnished her with assistance from December, 1949, until her death. The defendant acknowledged that Chelsea was the legal settlement of the said Braslowsky through December 31, 1954, and reimbursed the plaintiff for aid given her to that date. The plaintiff has not been reimbursed for aid provided by it after that date.

The auditor concluded that the provisions of G.L. c. 116, § 2, were '* * * determinative of the issue and that the said Esther Braslowsky did not lose her old settlement in the City of Chelsea * * *.' The defendant, however, contends that Braslowsky lost her Chelsea settlement status under G.L. c. 118A, § 1, and therefore the city of Chelsea is not liable for assistance provided by the plaintiff after December 31, 1954.

The question before us is whether the recipient of old age assistance retained her legal settlement in the city of Chelsea although she took up residence in an incorporated charitable institution located in another city.

A settlement is acquired by residence in a town for five consecutive years (G.L. c. 116, § 1) and lost by failure for five consecutive years to reside in a town where settlement had been acquired (G.L. c. 116, § 5). The last sentence of G.L. c. 116, § 2, was added by St.1943, c. 379, and provides as follows: 'No person residing in an incorporated charitable institution the personal property of which is exempt from taxation, other than an employee of such institution, shall gain or lose a settlement nor be in the process of gaining or losing a settlement while residing therein.'

General Laws c. 118A, § 8 (as amended through St.1941, c. 729, § 8), provides that one third of the expense incurred by a town in providing assistance to one having a legal settlement in another town '* * * may be recovered in contract against the town liable therefor in accordance with chapter one hundred and seventeen.'

The first paragraph of G.L. c....