Everett v. Riverside Hose Company No. 4, Inc.

Decision Date17 October 1966
Docket NumberNo. 66 Civ. 1621.,66 Civ. 1621.
Citation261 F. Supp. 463
PartiesDavid EVERETT, Plaintiff, v. RIVERSIDE HOSE COMPANY NO. 4, INC., Defendant.
CourtU.S. District Court — Southern District of New York

Leonard Kolleeny, New York City, for plaintiff.

Levy, Gutman & Goldberg, New York City, for Westchester N. Y. State Civil Liberties Union, amicus curiæ.

Purdy, Lamb & Catoggio, New York City, Edmund F. Lamb, William E. Fay, III, New York City, of counsel, for defendant.

MEMORANDUM

TENNEY, District Judge.

This is an action brought by a resident of Westchester County, New York, against defendant, a Volunteer Fire Company of the Volunteer Fire Department of the Village of Tarrytown in said county, arising out of the rejection of plaintiff's application for membership in said Company and declaring: that said rejection was wrongful, void and illegal; that plaintiff should be and is a duly elected member of said Company; and ordering defendant, its officers and members, to confirm and establish and to refrain from interfering with such membership.

Plaintiff alleges that his rejection for membership violates the provisions of Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983; 78 Stat. 246 (1964), 42 U.S.C. § 2000b (1964); 78 Stat. 252 (1964), 42 U.S.C. § 2000d (1964); the 14th Amendment of the Constitution of the United States; Art 1, § 11 of the Constitution of the State of New York; Article 15 of the Executive Law of the State of New York, McKinney's Consol.Laws, c. 18; and the Governor's Code of Fair Practice established by Executive Order on January 1, 1960.

Defendant has moved herein, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, to dismiss the action on the ground that this Court lacks jurisdiction over the subject matter, and on the further ground that the complaint fails to state a claim upon which relief can be granted.1

Plaintiff has cross-moved, pursuant to Rules 12(c) and 56 of the Federal Rules of Civil Procedure, for summary judgment.

It would appear from the complaint herein that plaintiff, a 36 year-old Negro, is and has been a resident of Tarrytown, Westchester County, New York, for over twenty years; that he is and has been gainfully employed in said county, is of good physical and mental health, and has never been arrested or convicted of a crime.

The defendant is a membership corporation organized and existing under the Laws of the State of New York, and more particularly is a Volunteer Fire Company of the Volunteer Fire Department of the Village of Tarrytown, County of Westchester, New York (hereinafter referred to as "Fire Company"). See N.Y. Village Law, McKinney's Consol. Laws, c. 64, § 203.

Plaintiff, desiring to become a member of said Fire Company, duly applied for membership some time prior to February 3, 1966, his application being sponsored by the Mayor of the Village of Tarrytown, a member of defendant.

Plaintiff alleges that his application was duly investigated by defendant's Investigating Committee, approved, and put to the general membership for a vote at a membership meeting on February 3, 1966.

The Constitution and By-Laws of defendant (Article VII, Sec. 2) provide that a negative vote by three ballots is enough to reject an application for membership.

Plaintiff further alleges that there were five applications for new members on the ballot for vote on said date, the other four applicants being non-Negroes. Two of said applicants were not even residents of the Village of Tarrytown. All four white applicants were admitted to membership but plaintiff was denied membership without any reason given therefor by defendant.

Plaintiff alleges, upon information and belief, that the vote against his admission was 27-to-5,2 and that his application was rejected solely because he was a Negro, that no previous applicant has been denied membership in defendant, and, further, that no Negro has ever been a member of defendant during its entire existence, nor, in fact a member of any company of the Volunteer Fire Department of the Village of Tarrytown. Finally, he alleges that for the reasons hereinafter set forth, volunteer fire departments are quasi-governmental agencies of the State of New York.

Although the plaintiff does not specify the particular grounds for the jurisdiction of this Court, it seems clear that he is predicating such jurisdiction on Title 28 U.S.C. § 1343(3) (1964) which grants to the Federal district courts original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; * * *

Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1964) provides:

Civil action for deprivation of rights.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Plaintiff also bases his cause of action on 78 Stat. 246, 252 (1964), 42 U.S.C. §§ 2000b and 2000d (1964). However, in view of my determination herein that he has adequately stated a cause of action under Section 1983 of said Title 42, it is unnecessary to consider the adequacy or propriety of his claims under the other abovementioned statutes.3

Of course, for the purposes of defendant's motion under Rule 12(c), the well-pleaded allegations of the complaint must be accepted as true, as well as the reasonable inferences flowing therefrom. Brown v. Bullock, 194 F. Supp. 207 (S.D.N.Y.), aff'd, 294 F.2d 415 (2d Cir. 1961). In other words, we must assume that plaintiff, who satisfies the age and residence requirements for membership,4 is in good physical and mental health, is gainfully employed, and is without any criminal record, was denied membership in a Volunteer Fire Company after having been duly sponsored by a member thereof, and that the denial of membership was solely because he was a Negro, no Negro ever having been elected to membership in said Fire Company.5

Defendant argues that plaintiff was rejected pursuant to the Constitution and By-Laws of defendant—more particularly Article VII, Section 2, of said Constitution, which provides that: "In the event that there are three or more negative ballots cast by those members present and voting, the applicant shall be declared rejected; otherwise the applicant shall be declared elected * *"; and that "the rejection of plaintiff was not a corporate action as such, but the action of members in the exercise of the lawful prerogative which they possess in voting upon membership." (Defendant's Reply Memo. P. 13.) Accordingly, it is defendant's contention that in acting upon plaintiff's application for membership, defendant was not performing any governmental or state function, or acting in any capacity in furtherance or enforcement of any state law, statute, ordinance, regulation, custom or usage, nor did it deprive plaintiff of any right under color of any state law, statute, ordinance, regulation, custom or usage.

Defendant's argument would have some validity if we were dealing with a purely social or benevolent organization occupying or utilizing private property and performing no governmental or quasi-governmental function or receiving no governmental assistance. This, however, is not the present case for it can hardly be denied that a voluntary fire department is performing a function normally governmental in nature.

This particular defendant was organized under special provisions of the Membership Corporations Law, McKinney's Consol.Laws, c. 35, Section 11(4), which require the consent of the majority of the village trustees (who are elected public officials) (N.Y. Village Law § 4-406(6)), after a public hearing.

Election to membership is provided for under § 202-a of the N.Y. Village Law, which states that such "election shall be pursuant to the by-laws, if any, of the fire company; otherwise, by a three-fourths vote of the members of the fire company present and voting at a regular or special meeting thereof." Such election is subject to the approval of the Board of Fire Commissioners, who, among other things, may, subject to the approval of the Board of Trustees, adopt rules for the admission of members of the Fire Department, N.Y. Village Law § 200(5).

It is conceded, not only for the purposes of this motion, but in fact by defendant's answer, that defendant's fire houses are built, owned and operated by the Village of Tarrytown, that its fire equipment is purchased and owned by said Village, and that the members of defendant are entitled to a reduced assessment of $500 on their homes for the purpose of Village real estate taxes (N.Y. Real Property Tax Law, McKinney's Consol.Laws, c. 50-a, §§ 464, 466). After a term of service in the Village fire department a volunteer fireman is entitled to a certificate of service entitling him to benefits under the N.Y. General Municipal Law, McKinney's Consol.Laws, c. 24, § 200 et seq. Furthermore, a volunteer fireman is exempt from jury duty (N.Y. Judiciary Law McKinney's Consol.Laws, c. 30, § 507 (5)) and is entitled to free transportation and the use of telegraph lines and telephones under certain defined circumstances (N.Y. General Municipal Law § 206) and to other substantial benefits (N.Y. Civil Service Law, McKinney's Consol.Laws, c. 7—Article VI).

Certain privileges, such as the right to engage in fund-raising activities and to use its equipment in connection with such fund drives, are granted to a fire company...

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