Offenses very similar to those referred to in this inquiry have been declared within the provisions of section 29 of the Penal Law.

I do not doubt but that a further criminal liability is created by section 1866 of the Penal Law where it is held that a public officer, a deputy or clerk of any such officer, receiving money on behalf of any city, county, village or town who wilfully disobeys any provision of law regulating his official conduct, is guilty of a misdemeanor punishable by a fine not exceeding one thousand dollars, or punishment not exceeding two years, or both.

Note should also be made of section 36 of the Public Officers Law providing for the removal of any town or village officer except the justice of the peace, by the Supreme Court for misconduct, malfeasance, or malversation in office.

A civil liability for the acts complained of is created by section 51 of the General Municipal Law providing for a taxpayer's action. It is there provided:

"All officers, agents, commissioners and other persons acting or who have acted, for and on behalf of any county, town, village, or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or corporations, jointly, the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessments

I think that the violations of the statutes such as you may submit are well within this section, and that actions to restrain the doing of further illegal acts of this nature, or for the recovery of moneys illegally paid out, might be maintained by a taxpayer qualified under its provisions. Such right of action exists against the officer responsible and not against the municipality.

Filkins v. The Mayor, 9 Misc. 610.
Dated May 25, 1911.

Respectfully submitted,

THOMAS CARMODY,

Attorney-General.

To Hon. GEORGE MCLOUGHLIN,

Secretary, State Commission of Prisons, Albany, N. Y.

6. Prescribe the rate of allowance to be made for bringing poor persons to the county alms-house, subject to such alterations as the board of supervisors may by general resolution make.

7. Authorize the keepers of such houses to certify the amount due for bringing such poor persons; which amount shall be paid by the county treasurer on the production of such certificate, countersigned and allowed by the county superintendents of the

poor.

8. Summarily decide any dispute that shall arise concerning

the settlement of any poor person, upon a hearing of the parties, and for that purpose may issue subpoenas to compel the attendance of witnesses, with the like powers to enforce such process, as is given to a justice of the peace in an action pending before him; their decisions shall be filed in the office of the county clerk within thirty days after they are made, and shall be conclusive and final upon all parties interested, unless an appeal therefrom shall be taken, as provided in this chapter.

9. Direct the commencement of suits by any overseer of the poor who shall be entitled to prosecute for any penalties, or upon any recognizance, bonds, or securities taken for the indemnity of any town or of the county; and in case of the neglect of any such overseer, to commence and conduct such suits, without the authority of such overseer, in the name of such superintendents.

10. Draw on the county treasurer for all necessary expenses incurred in the discharge of their duties, which draft shall be paid by such treasurer out of the moneys placed in his hands for the support of the poor.

11. Audit and settle all accounts of overseers of the poor, jus tices of the peace, and all other persons, for services relating to the support, relief or transportation of the county poor; and draw on the county treasurer for the amount of the accounts which they shall so audit and settle.

12. Furnish necessary relief to such of the county poor as may require only temporary assistance, or are so disabled that they can not be safely removed to the county alms-house, or to the county poor who can be properly provided for elsewhere than at the county alms-house at an expense not exceeding that of their support at such alms-house.

13. Render to the board of supervisors of their county, at their annual meeting, a verified account of all moneys received and expended by them, or under their direction, and of all their proceedings in such manner and form as may be required by the board.

14. Pay over to the county treasurer on the first day of each month all moneys received by him from any source in his official capacity, or otherwise received by him and belonging to the county, since the date of the preceding payment, and make payments which he is authorized to make under this chapter only by orders drawn

on the county treasurer, payable to the person entitled thereto and showing upon the face thereof the purpose for which the order is given. (As amended by chapter 75 of the Laws of 1912.)

15. Administer oaths and take affidavits in all matters pertaining to their office, and elicit, by examination under oath, statements of facts from applicants for relief.

Expenditures by the superintendent of the poor in the administration of his department are subject to the following limitations: The board of supervisors, at its annual meeting, may fix the maximum sum which may be expended by the superintendent, at his discretion, during the next ensuing year, and may provide that expenditures in excess of that sum shall be made only with the written approval of the chairman of the board of supervisors, or of a committee of the board, composed of not exceeding three members. If such limitation is fixed and such provision made, the county treasurer shall not pay any draft or order of the euperintendent in excess of the sum so fixed by the board, unless it is accompanied with the written approval of such chairman or committee.

The board of supervisors of a county has no power to direct the county treasurer not to pay, out of the poor funds, any draft drawn by the superintendents of the poor to their own order, or to the order of either of them, nor to direct him not to pay any draft unless the object for which the money is to be paid be specified therein. Supreme Court, December, 1878, People ex rel. Severn v. Demarest, 16 Hun, 123.

for serv

As to whether the statute (chap. 26, Laws of 1832) authorizing superintendents of the poor to "audit and settle all accounts ices relating to the support, relief or transportation of county paupers confers upon those officers power to audit claims under contracts made with them, quaere.

The claim of an attorney for services rendered by him on the employment of superintendents of the poor in bastardy proceedings is not one "relating to the support, relief or transportation" of paupers within the meaning of that statute, and no power is conferred upon the superintendents to audit such a claim.

Said officers have power to employ an attorney to conduct such proceed. ings; they are responsible to the attorney for his services and he may enforce his claim against them by action.

It seems that every expense they incur by such employment is a county charge, subject to the audit of the board of supervisors.

It seems also that where bastardy proceedings are successful and indem. nity secured, the attorney's fees with other expenses incurred may be charged upon the putative father (1 R. S. 644, §§ 13, 14). Court of Appeals, January, 1885, Neary v. Robinson, 98 N. Y. 81; Neary v. Robinson (Supreme Court, May, 1882, 27 Hun, 145), reversed.

It was more than intimated in Hayes v. Symonds (9 Barb. 260), that purchases of material and employment of labor by the superintendents, for which they were authorized to contract, were not the class of accounts to which the statute cited had reference. It would seem to be the more reasonable interpretation that their auditing power does not extend to their own contracts, and so make them sit as judges upon questions relating to their own conduct and their own corporate liability. Court of Appeals, January, 1885, Neary v. Robinson, 98 N. Y. 84.

Superintendents of the poor are not bound to audit the accounts of physicians and others for services rendered to county paupers by request of the overseers of the poor of the several towns; and this though the services were rendered in pursuance of orders for temporary relief. It is the duty of the overseers to adjust such accounts and charge them in their bills against the county. The employment of a physician by the superintendents of the poor of a county does not supersede the right of the overseers of the several towns to employ other physicians to attend county paupers entitled to temporary relief. Supreme Court, February, 1843, ex parte Green & Brown, 4 Hill, 558.

The provisions of subdivision 11 have no reference to services performed by the servants and laborers who are employed at the county poorhouse. Supreme Court, July, 1850, Hayes v. Symonds, 9 Barb. 260.

Superintendents of the poor have capacity to contract a liability for supplies furnished for the county poorhouse; which liability may be enforced by suit. Id.

But where it appears that the credit for supplies thus furnished was given to a fund, in the county treasury, raised by virtue of the fiftieth section of the act for the relief of indigent persons called the poorhouse fund, instead of to the superintendents, and on the supposition that the goods would be paid for by a draft on the treasurer, no action will lie against the superintendents until an application has been made to them for an order on the fund, and they have refused to give it. Id.

The office of superintendent of the poor, though invested with corporate powers, is, notwithstanding, a mere agency of the county, and the relation between the county and its superintendent is that of principal and agent. Court of Appeals, September, 1867, People v. Bennett, 37 N. Y. 117.

Where a person sells to superintendents of the poor, provisions for the poorhouse, upon an agreement that it is to be a cash sale, or if an order shall be given that it shall answer as cash, whereupon the superintendents give him an order upon the treasurer of the county, for the amount, and upon presentment of such order to the treasurer payment is refused, for want of funds, the vendor is remitted to his original right of action against the superintendents and may recover of them the value of the supplies.

In such a case the county is liable on the contract made by its authorized agents in the business specially committed to them by the statute. Supreme Court, May, 1851, Paddock v. Symonds, 11 Barb. 117.

The acts of a majority of the superintendents is binding upon the whole board. Court of Appeals, February, 1874, Johnson v. Dodd, 56 N. Y. 76.

The statutes relating to the support of the poor at county poorhouses furnish no authority for a discrimination between county and town poor, in respect to the application of the income of the poorhouse farm. On the

contrary the legislature intended the income should be applied to the support of the poor of the county generally, at the poorhouse, without distinction.

The statutory provisions obviously contemplate that the benefits resulting from the poorhouse and farm shall be common to the county and towns, in respect to the support of the poor at the poorhouse, without any regard whatever to the general obligation of each to support its own poor.

The occupancy of the property, the products of the farm consumed thereon and in the poorhouse, the labor of the poor in carrying on the farm and the business of the poorhouse, the avails of sales of products of the farm and the labor of the poor, are all to go, and be applied, to reduce the expenses of the support of the poor generally, at the poorhouse, without any discrimination.

Thus, where the city of Rochester was, by law, in the condition of a town, in respect to the mode of supporting its poor at the county poorhouse, it was held that the income of the poorhouse farm in Monroe county ought to be applied to the support, indiscriminately, of the county, town and city poor, kept at the county poorhouse on said farm. Supreme Court, September, 1856, City of Rochester v. Supervisors of Monroe, 22 Barb. 248.

The overseer of the poor cannot incur for the county a liability beyond the sum of $10, for relief in a single case, without the consent of one of the superintendents of the poor.

But with this restriction, his power of giving temporary relief is independent of the control of the superintendents of the poor. Cayuga Circuit Court, November, 1851, Gere v. Supervisors of Cayuga, 7 How. 255.

The superintendents of the poor are not authorized to receive paupers into the county poorhouse to be supported at the expense of the county, unless an order to that effect has been made by the overseer of the poor; or a warrant has been issued for the removal of the pauper to the county poorhouse as a lunatic. In Chancery, May 19, 1840, Pomeroy v. Wells, 8 Paige,

405.

The court of sessions has no power in a proceeding under title 8 of part 6 of the Code of Criminal Procedure to prescribe the place where the poor person shall be supported, nor any of the conditions of such support, except that the manner of it shall be such as shall be approved by the superintendent of the poor. The provisions of the Revised Statutes requiring the removal to the county house of all persons requiring permanent relief or support do not apply to such a case. Supreme Court, April 13, 1892, in re Weaver, Supt., 45 St. Rep. 95.

An account of moneys expended for the support of a pauper, in a county having a poorhouse, need not be audited by town auditors. Supreme Court, August, 1828, People v. Supervisors of Washington, 1 Wend. 75.

An action cannot be maintained against the superintendents of the poor upon an account for services relating to the support of county paupers.

Should the superintendents refuse to audit such an account, the proper remedy is by certiorari. Supreme Court, May, 1848, Vedder v. Superintend ent of Schenectady County, 5 Den. 564.

Chapter 169 (§ 4) of the Laws of 1877 is not violative of the provision of section 11, article 8 of the Constitution forbidding the giving by a city of its money or property in aid of persons or corporations, save as excepted; it comes within the exception allowing such gifts by a city "in aid or