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Exempt Fireman's Assn. of City of Little Falls v. City of Little Falls

Supreme Court of New York, Appellate Division

December 29, 1911

THE CITY OF LITTLE FALLS and WILLIAM QUACKENBUSH, as City Treasurer of the City of Little Falls, Defendants.

Page 441

SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.


William S. Rhodes, for the plaintiff.

S. H. Newberry and C. J. Palmer, for the defendants.


The controversy is over certain moneys collected pursuant to the provisions of the Insurance Law upon business done by foreign fire insurance companies for insuring property within the city of Little Falls and now held by the city treasurer and claimed by the plaintiff. The amount in controversy is $2,503.37. The question submitted is whether this fund shall be paid over to the plaintiff's treasurer, as the plaintiff claims, or may be used to maintain the present fire department of the city, as the city contends.

While section 133 of the Insurance Law declares that the percentage tax shall be for the use and benefit of the fire department, that declaration should be read in connection with the other provisions of the statute. These provisions, as a whole, as interpreted by the courts, seem to indicate that the first claim upon the fund is for the relief of exempt or veteran volunteer firemen, administered through organized firemen's relief or benevolent societies having the requisite authority. (Ins. Law [Gen. Laws, chap. 38; Laws of 1892, chap. 690], § 133, as amd. by Laws of 1901, chap. 726; Id. § 135; Ins. Law [Consol. Laws, chap. 28; Laws of 1909, chap. 33], § § 133, 135.) This percentage tax provision has been embodied in our statutes in substance for many years and was passed upon by the Court of Appeals in Trustees of Exempt Firemen's Fund v. Roome (93 N.Y. 313). In that case the history of this legislation, the origin and growth of the volunteer firemen's organizations, the relation of the volunteer firemen to the State and their service to the public

Page 442

are fully discussed. The action there was brought by an exempt volunteer firemen's corporation, organized by a special act of the Legislature (Laws of 1866, chap. 633), which authorized and directed the payment of the foreign fire insurance company percentage tax to the corporation. The fund of which the tax became a part was required to be invested, and the revenue derived therefrom used to afford aid and relief to such persons and their families as shall have been lawfully discharged from the volunteer fire department of the city of New York who were in indigent circumstances, 'and to the families of members of said department who have been maimed or killed in the discharge of their duty as volunteer firemen.' The action was brought against an agent of a foreign fire insurance company to recover the percentage tax. The constitutionality of the act was attacked upon the ground, among others, that the payment had continued after the service of the firemen had ended, and that the appropriation was a mere gift. But it was held that the plaintiff corporation was a subordinate governmental agency employed by the State to fulfill its obligations due the exempt firemen for the services they had rendered at the request and by the procurement of the State; and the judgment in its favor was affirmed.

I would have no difficulty in reaching the conclusion that the plaintiff is entitled to the percentage tax in this case, if it appeared that it was organized for the purpose contemplated by the statute, and authorized to receive and administer the fund. But it does not so appear from the statement of facts upon which this controversy is submitted, as will be presently pointed out.

The plaintiff is a domestic corporation. It was organized November 4, 1899, under the Membership Corporations Law, by the name of The Exempt Fireman's Association of the City of Little Falls, operating within that city. There is another corporation, organized March 1, 1903, under the same law, by the name of The Little Falls Fireman's Relief Association, operating within the same city. It is somewhat similar in character to that of the plaintiff. It is not made a party to this proceeding. Whether there are any others we do not know.

Page 443

At the time the plaintiff was organized the fire department of the city of Little Falls was in a state of transition from volunteer firemen to paid firemen. Shortly before the incorporation of the plaintiff the fire department of the city consisted of six separate volunteer fire companies, each having from eighteen to thirty members, with separate organizations and separate headquarters. Five of the volunteer companies were taken out of service by the city and paid firemen put in their place in June, 1899, and the services of the remaining volunteer company were dispensed with July 1, 1902. Since that time the fire department has been wholly a paid fire department.

From 1897 to 1900 the percentage tax was distributed equally among the six volunteer companies, and for the next three years paid to the one volunteer company remaining in service, except that in 1903 ten per cent was paid to the Fireman's Home at Hudson, N.Y. The money collected thereafter, up to and including 1910, remains in the hands of the city treasurer, except for the first three years it was transferred to the police ...

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