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People ex rel. Brown v. Prendergast

Supreme Court of New York, Appellate Division

November 3, 1911

WILLIAM A. PRENDERGAST, as Comptroller of the City of New York, Respondent.

Page 714

APPEAL by the relators, Oliver S. Brown and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of August, 1911, denying the relators' motion for a peremptory writ of mandamus directing respondent to audit and allow a claim and to draw a warrant for the same.


Charles W. Brown, for the appellants.

Loyal Leale of counsel [Theodore Connoly and Arnold Charles Weil with him on the brief], Archibald R. Watson, Corporation Counsel, for the respondent.


On April 21, 1911, Michael Smith, who was a resident of the city of New York and an honorably discharged veteran who had served in the military service of the United States, died at the New York State Women's Relief Corps Home, at Oxford, N.Y. , being at the time an inmate of said home, leaving him surviving a widow and one adult child. Decedent had at the time of his death the sum of fifty-four dollars, which he had saved from his pension, and no other money or property.

The relators are undertakers. They buried the decedent in the cemetery of the said home and presented their bill for fifty dollars for services in connection with the interment to the comptroller of the city of New York for payment. The comptroller refused to pay the same upon the expressed ground that 'As the decedent left moneys sufficient to defray his funeral expenses the claim is not a proper charge under section 84 of chapter 46 of the Laws of 1909, and the same has, therefore, been disallowed.' Relators thereupon instituted this proceeding to procure a peremptory writ of mandamus to compel the

Page 715

audit and payment and, the Special Term having denied the application, appeal.

Section 84 of the Poor Law (Consol. Laws, chap. 42; Laws of 1909, chap. 46), entitled 'Burial of Soldiers, Sailors or Marines,' provides that 'The board of supervisors in each of the counties shall designate some proper person or authority * * * who shall cause to be interred the body of any honorably discharged soldier, sailor or marine, who has served in the military or naval service of the United States, * * * and who shall hereafter die without leaving sufficient means to defray his * * * funeral expenses, but such expenses shall in no case exceed fifty dollars. If the deceased has relatives or friends who desire to conduct the burial, but are unable or unwilling to pay the charge therefor, such sum shall be paid by the county treasurer, upon due proof of the claim, and of the death and burial of the soldier, sailor or marine * * * to the person so conducting such burial.' Section 85 (as amd. by Laws of 1910, chap. 102) provides for the audit and payment of the expenses of such burial by the board of supervisors or other board or officer vested with like powers of the county of which such deceased soldier was a resident at the time of his death; 'provided, however, that in case such deceased soldier * * * shall be at the time of his death an inmate of any State institution, including State hospitals and soldiers' homes, or any institution supported by the State, and supported at public expense therein, the expense of such burials and headstones shall be a charge upon the county of his legal residence.'

As stated by the respondent, the sole question involved in this appeal is whether this sum of fifty-four dollars vested in the widow by virtue of the provisions of section 2713 of the Code of Civil Procedure, or whether it was applicable to the payment of the funeral expenses of the deceased. Said section provides as follows: 'If a man having a family die, leaving a widow or minor child or children, the following articles shall not be deemed assets, but must be included and stated in the inventory of the estate without being appraised: * * * 5. Other necessary household furniture, provisions or other personal property in the discretion of the appraisers to the

Page 716

value of not exceeding one hundred and fifty dollars. Such articles and property shall remain in the possession of the widow, if there be one, during the time she lives with and provides for such minor child or children. * * * If there be a widow, and no minor child, all the articles and property in this section mentioned shall belong to the widow.'

In my opinion the sum of fifty-four dollars left by decedent is exempt and belongs to the widow. It is no part of decedent's estate. It is not assets thereof out of which to pay expenses of administration, funeral expenses, debts or legacies. Money is included in the ...

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