The judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.
The action was brought to recover amounts paid by Jefferson county for the maintenance of one Briggs, an insane person, at the State hospital, he being a resident of Oswego county. The trial court dismissed the complaint on the merits. The action was based upon the provisions of sections 658-662.of the Code of Criminal Procedure.
Briggs, residing in- the town of Sandy Creek, Oswego county, went over into the adjoining town of Ellisburg, Jefferson county, and committed a crime, a felony. lie was indicted at the Oyer and Terminer in Jefferson county in September, 1885,- and,: upon being, arraigned, a plea of insanity was interposed for him. Thereupon the court appointed a commission under section 658 of the Code of Criminal Procedure to examine and report as to his sanity. The case was sent to the Court of Sessions, and the commission directed to report to that court. The commission reported that Briggs was insane, and the court, under section 659 of the Code of Criminal Procedure, ordered him committed to the State lunatic asylum. He was received into the asylum and has ever since remained in some State institution for the insane, and is there now. Section 662 of the Code of Criminal Procedure provided: “ The expenses of sending the defendant to the asylum, of keeping him there and of bringing him back, are in the first instance chargeable to the county from which he was sent, but the county may recover them from the estate of the defendant, if he have any, or from a *241relative, town, city or county bound to provide for and maintain him elsewhere.
This act was chapter 442 of the Laws of 1881, and this section has never been changed since originally enacted in 1881. Pursuant to the provision of this section Jefferson county has every year-been called upon by the State to pay, and has paid,'for keeping Briggs in the asylum or hospital for the insane. It has every year presented a bill for the amount so paid to Oswego county, and the same has been paid down to and including the year 1897. Payment was refused for the years 1898 to 1901, both inclusive, and for the amount of these bills this action was brought. There has never been any dispute, and there is none now, that Briggs at and prior to the commission of the crime for which he was indicted, was a resident of Oswego county; that he had no estate from which Jefferson county could recover the amounts paid for his maintenance in the State asylum or hospital; that he had no relative from whom such recovery could be had ; that he had never before he was indicted been a pauper, or a charge as such upon his town or county. The claim always made and still made was and is that he was -an indigent insane person, not a pauper; that is, a person who usually provided for himself or was provided for by friends, and who needed assistance only when sent to an asylum under the visitation of insanity. It will appear from an examination of the statutes and the adjudged cases that the county and not the towm during all the years since 1843, has been bound to. provide for the support and maintenance of such persons residing within the county in the State institutions for the insane. And if that be true, then, under the provision of the Code of Criminal Procedure, the county of Oswego -was liable to the county of Jefferson in this action.
In People ex rel. Blenheim v. Supervisors (121 N. Y. 345, 349), O’Brien, J., said: “ It will be seen by a careful examination of the statute that there is a clear and well-dehned difference in the method provided for the maintenance and care of pauper lunatics, and that other class of persons called indigent insane persons, but not paupers. The policy of the State in regard to the latter class is well expressed by an eminent author in the following language: ‘ The *242law of indigence as distinct from pauperism was first introduced . among our lunacy statutes in 1842 (Chap. 135, § 26). It was designed for the benefit of that laboring population, which is- only self supporting while employed, etc. Hence such persons are accorded a temporary support from the county for a specified time. * * * This support being a county charge, cannot as in the case of paupers, be cast upon any particular town in which the indigent lunatic may have had a residence.’ (Ordronaux’s Judicial Aspect of Insanity, 87.) ”
Sections 26 and 27 of chapter 135 of the Laws of 1842 provided for the support and maintenance of an insane person for two, three and five years at the expense of the county, when such person was in indigent circumstances, not a pauper, having an estate insufficient to support himself or himself and family under the visitation of insanity, and sections 31, 32, 36, 37 and 39 provided for the confinement of insane persons acquitted on the ground of insanity or held under indictment or sentence for a crime, and provided that the county from which such persons were sent should pay all expenses of his confinement, but might recover the amount so jiaid from the estate of the insane persons if they had any, or from any relative, town, city or county that would have been bound to provide for or maintain him elsewhere. It will be seen that this is the identical provision contained in section 662 of the Code of Criminal Procedure in question here. (See Supervisors of Onondaga County v. Morgan, 4 Abb. Ct. App. Dec. 335 ; People v. Supervisors of Genesee, 7 Hill, 171.) In this latter case a definition of indigent insane persons was given, substantially as I have given it above, and it was held that the county having, under section 26 of the act of 1842,- paid the expenses of an indigent insane person, could not recover the same from the town where the insane person resided, the county alone being responsible therefor. This case appears to be fully approved by the Court of Appeals in the Blenheim case, above cited. Apparently the act of 1842 was not changed in the respects above referred to until the enactment of chapter 446 of the Laws of 1874. That act revised and consolidated the statutes of the State relating to the care and custody of the insane, the management of the asylums, etc., and repealed all laws inconsistent therewith. Sections 14 and 15 of title 1 of the act of 1874 *243(as amd. by Laws, of 1880, chap. 164) were practically the same as sections 26 and 27 of the act of 1842, at least so far as the question we are considering is concerned. Sections 20-36 of title 1 of the act of 1874 provided for. the commitment of the insane by criminal process, substantially as sections 31-39 of the act of 1842, but in greater detail. Section 26 of title 1 of the act of 1874 provided especially as to a person in confinement under an indictment, and had the same provision in almost the identical language quoted above (Code Grim. Proc. § 662), the language of said section being, “ When such person is sent to an asylum, the county from which he is sent shall defray all his expenses while there and of sending him back if returned, but the county may recover the amount so paid from his own estate, if he have any, or from any relative, town, city or county that would have been bound to provide for and maintain him elsewhere.” Section 32 of title 1 of the act of 1874 also related to the same subject, a person in confinement under an indictment, and provided for the payment of the expenses in nearly the same language as said section 26. Said section 32 was amended by chapter 515 of the Laws of 1884, but the general features of the section were preserved. Section 22 of title 1 of the act of 1874 related to a person who had escaped indictment or conviction by reason of insanity, and provided for the payment of the expenses in the same language almost precisely as said section 32, and nearly the same as said section 26. There appears to have been no material change in these provisions from 1874 until 1896 when chapter 545 of the laws of the latter year was enacted. That act related apparently to the whole subject of insanity and the care'and custody of insane persons, and was designated as chapter 28 of the General Laws. It repealed all the provisions of the act of 1874 as to the insane other than some of the provisions relating to those confined under criminal proceedings, and in place of sections 14 and 15 of title 1 of that act (as amd. supra), enacted section 65, which provided that “ all poor and indigent insane persons not in confinement under criminal proceedings shall, without necessary delay, be transferred to a State hospital, and there wholly supported by the State.” It saved from repeal sections 22 and 26 of title 1 of the act of 1874 hereinbefore referred to relating to the criminal insane, and left unrepealed and unchanged *244section 662 of the Code of Criminal Procedure enacted in 1881, under which this action is brought. It provided by sections 90-104 for a State hospital for insane criminals known as the Matteawan State Hospital, and the care of the insane therein, and by section 101 provided for the transfer of certain insane inmates of a State hospital to such hospital for criminal insane, and added, “ and the county in which the criminal charge arose, or conviction or acquittal was had, shall defray all the expenses of such person while at the Matteawan State Hospital, and the expenses of returning him to such county,” and by section 102 provided for the recovery for the support of any patient in such criminal insane hospital chargeable under the law to counties or penitentiaries.
It is somewhat interesting to note the legislation following the enactment of this act of 1896. By chapter 451 of the Laws of 1897 and chapter 417 of the Laws of 1898, section 26 of title 1 of the act of 1874 was amended by inserting some provisions not material to our inquiry here, but the sentence with reference to the payment of the expenses of the care, etc., of the insane persons was retained precisely the same as in the act of 1874. In the appropriation bill for the support of the insane under chapter 545 of the Laws of 1896, passed in 1897 and being chapter 460, is found the following sentence: “ The maintenance of any inmate of a State hospital committed upon a court order arising out of any criminal action or proceeding, shall be paid by the county from which such inmate was committed, and in the event that any such inmate is transferred to the Matteawan State Hospital, or transferred from said hospital to one of the State hospitals, such transportation shall be paid by said county.” By. chapter 260 of the Laws of 1899,' section 101 of the act of 1896 was amended so that the part quoted above should read as follows :And the county in which the criminal charge arose, or conviction or acquittal was had, if the person was then a resident of that county, shall defray all the expenses of such person while at the Matteawan State Hospital, and the exjDenses of returning him to such- county; in any other case such expense shall be a charge against the State.” The portions italicized were added by this amendment. This section 101 of the act of 1896 was again amended by chapter 380 of the Laws of 1900 in a matter of detail not material here. The clause above quoted remained sub*245stantially unchanged. Section 65 of the act of 1896 was amended by chapter 546 of the Laws of 1901 in particulars not important here, and then there was added at the end thereof this language: “ The maintenance of any inmate of a State hospital, committed thereto upon a court order arising out of any criminal action, shall be paid by the county from which such inmate was committed.” This latter provision had been first added in substantially the same words by chapter 380 of the Laws of 1900. Section 101 of the act of 1896 was again amended by chapter 525 of the Laws of 1904. The provision with reference to expenses above quoted was omitted entirely, and in place thereof were inserted the words, “ From and after October first, nineteen hundred and four, all persons then inmates of the Hatteawan State Hospital and all persons thereafter committed to its custody shall be a charge upon the State.” By this provision the troublesome question we are considering has been set at rest for the future. However, this litigation relates to the support of this indigent insane person during four years following the passage of the act of 1896. Section 662 of the Code of Criminal Procedure provided that the county paying the expenses of the support of the insane criminal might recover them from the town or county bound to provide for and maintain him elsewhere, the meaning of which was apparently that if any other town or county would have been bound to support the lunatic if not a criminal, it would be liable for such expenses to the county where the criminal proceedings were pending.
Briggs was an indigent insane person residing in Sandy Creek, Oswego county, when the commitment to the asylum was made. There could be little doubt that Oswego county and not the town of Sandy Creek was bound to support and maintain him in the asylum if not a criminal down to the passage of the act of 1896. This was a result at least of sections 14 and 15 of title 1 of the act of 1874 (as amd. supra), and then, since he was a criminal, section 26 of title 1 of the act of 1874 and section 662 of the Code of Criminal Procedure passed in 1881 permitted the recovery by Jefferson county from Oswego county of such expenses. The county of Oswego recognized its liability during that time and paid without litigation. Since the passage of the act of 1896, however, the matter has been more or less in doubt. . Section 65 of that act made *246all expense of maintaining indigent and pauper insane, other than criminals, thereafter a State charge. The Legislature did not make the expense of maintaining criminal insane a State charge until October 1, 1904. It retained sections 22 and 26 of title 1 of the act of 1874 and section 662 of the Code of Criminal Procedure, and inserted sections 101 and 102 in the act of 1896, all clearly making the maintenance of the criminal insane originally a charge against the county committing them, and sections 22 and 26 of title 1 of the act of 1874 and section 662 of the Code of Criminal Procedure gave such county a claim over against others, including the county bound to support him at the time, for the amount so paid. -It seems to me that the Legislature intended to reserve this liability of the county of the criminal’s residence for his support during all the years from July 1, 1896, to October 1, 1904. The intention may not be very clearly indicated. If not, why was the language of sections 22 and 26 of title 1 of the act of 1874 and of section 662 of the Code of Criminal Procedure retained ? Why was the same language retained in the amendment of this section 26 in 1897 ? In all these the county as well as others is left in the statute as a party liable over, and yet if the Legislature as between two counties intended to make the county where the crime was committed liable and to exempt the county of the residence of the insane person, why was the latter county still left in the statute ? It is true that by section 101 of the act of 1896 the expense of insane criminals was made chargeable to the county where the crime was committed or the conviction or the acquittal was had, without adding the provision for recovery over, and the same is true of the appropriation bill of 1897 (Chap. 460) and of the amendments to section 65 of the act of 1896 made in 1900 and 1901, and that the amendments of section 101 of that act made in 1899 and 1900 added to the provision making the county of the crime or of the conviction or of the acquittal liable, the words “ if the person was then a resident of that county,” and added, “ in any other case such expense shall be a charge against the State,” but all this time sections 22 and 26 of title 1 of the act of 1874 (as amd. supra) and section 662 of the Code of Criminal Procedure were retained in the same identical language. It seems to me it was never the design to continue the liability of the county of the crime or of the conviction, *247or of the acquittal and take away its right to recover over against the county of the residence of the insane person. Any other result would be a great injustice to the county where the crime was committed. Briggs resided in Oswego county and that county was liable for his maintenance as an indigent insane person. He went over the county line and committed a crime in Jefferson county. If his own county had done its duty he would already have been in an asylum, and would not have been at large to commit the crime, and yet it is claimed that his maintenance in the hospital should be imposed upon Jefferson county and Oswego county relieved therefrom.
I cannot believe that the Legislature intended that any such injustice should be possible under the statutes. Again it is not disputed that the county of Oswego was liable over at the time the commitment was made and remained so from 1885 to July 1,1896, and recognized such liability. Should not the rights of the counties be determined as of the time the commitment was made? Could the Legislature by any act it might pass interfere with the vested rights of Jefferson county ? So long as the State held Jefferson county liable to pay in the first instance for the maintenance of Briggs, could the Legislature pass any act relieving Oswego county from its liability over under the statute ? If it had the power to do so can it be said that the Legislature intended such an injustice to a county situated as Jefferson county is?
And my conclusion is that the defendant is liable and should be compelled to respond to the plaintiff for the claims made the basis of this action. *
I think the judgment should be reversed and a new trial ordered, with costs to appellant to abide event:
McLennan, P. J., concurred.
Judgment affirmed, with costs.