Wilcox v. Schenck

• Decision Date: 03 June 1976
• Citation: 52 A.D.2d 349,383 N.Y.S.2d 918
• Parties: David WILCOX, on behalf of himself and others similarly situated, Respondents, v. Benjamin R. SCHENCK, as Superintendent of Insurance of the State of New York, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 918

383 N.Y.S.2d 918

52 A.D.2d 349

David WILCOX, on behalf of himself and others similarly situated, Respondents, v. Benjamin R. SCHENCK, as Superintendent of Insurance of the State of New York, et al., Appellants.

Supreme Court, Appellate Division, Third Department.

June 3, 1976.

Caffry, Pontiff, Stewart, Rhodes & Judge, Glens Falls (Robert S. McMillen, Glens Falls, of counsel), for appellants.

Tate & Tate, Albany (Rex S. Ruthman, Albany, of counsel), for respondents.

Before GREENBLOTT, J.P., and SWEENEY, KANE, HERLIHY and REYNOLDS, JJ.

HERLIHY, Justice.

Pursuant to the provisions of sections 553 and 554 of the Insurance Law, the appellant, Roderick Carpenter, as Treasurer of the Fire Department of the Village of Hudson Falls, has received certain funds derived from a tax on premiums of policies of fire insurance. Section 553 directs the Treasurer of the Fire Department to 'apportion and pay over all tax so received to the treasurer of the fire company or companies whose obligation it is to render fire protection in the * * * village'. Section 554 directs the Superintendent of Insurance to pay the appropriate sum collected by him pursuant to that section to the Treasurer of the Fire Department 'for the use and benefit of such department'.

The appellant Treasurer has consistently paid such funds by apportionment to the three appellant volunteer fire companies without setting any aside for the benefit of the plaintiffs who are paid firemen of the Village. The plaintiffs seek to share in the benefit of the sections 553 and 554 funds along with the volunteer fire company members and, accordingly, the instant proceeding was instituted by the named plaintiff on behalf of himself and the paid firemen of the Village of Hudson Falls. Plaintiffs' motion was limited to seeking summary judgment declaring that they are entitled to participate in the distribution of the funds together with the volunteer fire companies. Special Term held that they are entitled to share in the funds.

The appellants generally contend that, as a matter of law, the plaintiffs are not entitled to participate in the distribution of the sections 553 and 554 funds and this is the primary issue upon this appeal.

It is well established that volunteer firemen have no preference under the statutory language over paid firemen as to sharing in the benefits of the funds (see Cary v. City of Oneida, 158 App.Div. 773, 144 N.Y.S. 57; cf. Exempt Volunteer Firemen's Ass'n of Lockport v. City of Lockport, 31 A.D.2d 311, 297 N.Y.S.2d 365; Niagara Falls Fire Dept. Mut. Aid Assoc. v. Exempt Firemen's Assoc., City of Niagara Falls, 25 A.D.2d 484, 266 N.Y.S.2d 627; Matter of Crohn v. Firemen's Benevolent Fund Ass'n of City of Mount Vernon, 79 Misc.2d 536, 539, 359 N.Y.S.2d 599, 603, affd. on opinion below, 45 A.D.2d 955, 359 N.Y.S.2d 247). The contention of the appellants that the plaintiffs are not entitled to any share in the benefit of the funds because they are civil service employees has no merit.

The present record does not clearly demonstrate that the dispersal of the tax funds to the volunteer fire companies is arbitrary and capricious; however, it is established that appellants are under the erroneous legal impression that, as a matter of law, the Treasurer of the Village Fire Department must automatically give all of the money to the volunteer fire companies. To that extent there is a justiciable controversy in which the remedy of declaratory judgment is appropriate.

As noted by Special Term in its decision:

The funds as such are not available for the personal use of either the paid or volunteer fireman. The legislature did not intend this money to be used for general purposes such as the purchase of fire trucks or equipment of the Fire Department which may be considered...