Morley v. Lake Shore Fire Dist.

• Citation: 346 N.Y.S.2d 606,74 Misc.2d 977
• Parties: In the Matter of Edward MORLEY and Cecil Williams, Petitioners, v. The LAKE SHORE FIRE DISTRICT, Duly Incorporated District Corporation in the Town of Greece, Monroe County, New York, Respondent.
• Decision Date: 26 July 1973
• Court: New York Supreme Court

Page 606

346 N.Y.S.2d 606

74 Misc.2d 977

In the Matter of Edward MORLEY and Cecil Williams, Petitioners, v. The LAKE SHORE FIRE DISTRICT, Duly Incorporated District

Corporation in the Town of Greece, Monroe County,

New York, Respondent.

Supreme Court, Monroe County.

July 26, 1973.

[74 Misc.2d 978] Forsyth, Howe & O'Dwyer, Rochester (C. Ben Forsyth, Rochester, of counsel), for petitioners.

William C. Kelly, Rochester, for respondent.

MEMORANDUM

JAMES H. BOOMER, Justice.

The petitioners are both volunteer firemen who have moved from their fire district. Their fire company has voted to retain them as firemen despite their change of residence, but the commissioners of the fire district have refused to recognize them as members. Petitioners bring this Article 78 proceeding to annul the alleged action of the commissioners of the district in removing petitioners from the membership roll.

Section 176--b of the Town Law provides that the membership of a volunteer member of a fire company terminates when he moves from his district (§ 176--b, subd. 4). A fire company may nevertheless authorize his continued membership, but the 'authorization shall not become effective unless approved by resolution of the board of fire commissioners.' (§ 176--b, subd. 5.) A new member may be elected even though he lives outside of the fire district if authorized by the fire company, but the 'authorization shall not become effective unless approved by resolution of the board of fire commissioners.' (§ 176--b, subd. 6.) As to new members only, 'Membership shall be deemed to have been approved pursuant to this subdivision in the event that no action is taken by the board of fire commissioners, either approving or disapproving within seventy days after service of written notice of election to membership shall have been made by the secretary of the fire company upon the secretary of the board of fire commissioners, either personally or by mail.' (§ 176--b, subd. 6.)

The only allegations in the petition concerning approval by the board of fire commissioners appear in paragraphs 9, 11, 12 and 18 where petitioners state, as to each petitioner, that the members of the fire company approved the change of address and directed a new roster of members be sent to the board of fire commissioners showing the new address outside the fire district; that such new roster was filed with the commissioners and within 20 days thereafter, 'upon information and belief', was approved by the...