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Tillson v. Kuhner

Supreme Court of New York, Appellate Division

April 2, 1954

ELIZABETH TILLSON, as Administratrix of the Estate of JOHN E. TILLSON, Deceased, Appellant,
v.
HERBERT KUHNER et al., Respondents. ELIZABETH TILLSON, as Administratrix of the Estate of JOHN E. TILLSON, Deceased, Appellant,
v.
GREENPORT FIRE DISTRICT et al., Respondents.

Page 605

APPEALS from (1) an order of the Supreme Court at Special Term (DECKELMAN, J.), entered September 11, 1953, in Columbia County, granting a motion by Greenport Fire District, defendant in the second above-entitled action, for summary judgment dismissing the complaint as to it, and (2) an order of the Supreme Court at Special Term (BOOKSTEIN, J.), entered August 19, 1953, in Columbia County, granting a motion by Livingston Fire District, codefendant in the second above-entitled action, for judgment on the pleadings dismissing the complaint as to it, and (3) from the judgment of dismissal, entered on August 19, 1953, on the latter order. The first-

Page 606

mentioned order also directed a dismissal of the complaint in the first above-entitled action as to the defendant Town of Greenport.

COUNSEL

R. Waldron Herzberg and R. Monell Herzberg for appellant.

Warner M. Bouck, Harold E. Fritts and William F. Christiana for Greenport Fire District, respondent.

Harald R. Topken for Livingston Fire District, respondent.

Harold E. Fritts for Town of Greenport, respondent.

BERGAN, J.

On April 4, 1952, Herbert Kuhner, a volunteer fireman of the defendant Greenport Fire District in Columbia County, driving his own truck, collided on a public road within the Greenport District with an automobile operated by plaintiff's husband who died as a result of the accident.

Kuhner was on his way to the home of the Greenport District's fire chief to obtain fire equipment. He was making the trip at the direction of the fire chief. The equipment would have been used, after it had been obtained, to put out a fire in the adjoining territory of the defendant Livingston Fire District. Plaintiff, as administratrix, sued both fire districts. She also sued Kuhner and the two towns. We are concerned now only with the actions against the fire districts.

The two fire districts had previously entered into a 'mutual aid plan and agreement' by the terms of which Livingston was entitled to the assistance of Greenport in fire control. Greenport District pledged 'its fire fighting equipment and services', and the agreement recited that it did 'hereby authorize and instruct' its fire department officers 'to co-operate and render' assistance 'as needed'.

It is pleaded that on the day of the accident the Livingston Fire District 'requested * * * Greenport Fire District to send' equipment and volunteer firemen to put out the Livingston fire; and that the Livingston District further 'requested and directed' the Greenport fire chief to do this.

These are the factual allegations of the complaint accepted at their maximum, and putting aside the several legal conclusions pleaded, such as the statement that the Greenport chief was 'acting ...


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