Opinion
Argued January 13, 1937
Decided March 9, 1937
Appeal from the Supreme Court, Appellate Division, Second Department.
John R. Vunk, Malcolm G. Bibby and Harold Ashare for appellant. Irwin T. Longworth, Jr., and William J. Sullivan for respondents.
Milford H. Ottmann was a volunteer fireman of the village of Rockville Centre. While riding with other firemen on a fire truck belonging to the village and driven by Otto Stoye, a member of the same company, he was fatally injured in a collision between the truck and another motor car. The fire truck was at the time in use on official business and Stoye, the driver, was acting in the discharge of his duties and within the scope of his employment. Assuming the driver to be negligent and Ottmann free from negligence, the question of law remains whether the village is liable. Appellant relies upon the provisions of section 282-g of the Highway Law (Cons. Laws, ch. 25) which was in effect at the time of the fatal collision (now General Municipal Law, § 50-b).
Consideration of section 205 of the General Municipal Law (Cons. Laws, ch. 24) is essential for the purpose of ascertaining the intent of section 282-g of the Highway Law. Prior to the enactment of section 282-g, a municipal corporation was wholly exempt from liability for negligent acts of its employees while engaged in the performance of a governmental function. For the purpose of creating a partial remedy, at least so far as the operation of municipally owned vehicles is concerned, in behalf of those who were then without any redress, this section of the Highway Law was enacted. Its language does not imply an intent to afford additional protection to those for whom the Legislature had already provided. A contrary inference is natural. For many years antedating the enactment of section 282-g of the Highway Law, compensation for the death of a volunteer fireman resulting from injuries incurred in the performance of his duties was accorded to his personal representatives by section 205 of the General Municipal Law. Such compensation was available without regard to the fact that the fireman's death may or may not have been caused by negligence of fellow-employees or others. It included negligence. In any event the remedy existed and there is no reason to infer that by the amendment to the Highway Law the Legislature intended to do more than to bestow a remedy upon victims or their representatives who would otherwise be without redress in the event of injury or death caused by the negligence of a municipal employee engaged in the performance of a government function.
The judgment should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur; FINCH, J., taking no part.
Judgment affirmed.