The opinion of the court was delivered by: TENNEY
This is an action brought by a resident of Westchester County, New York, against defendant, a Volunteer Fire Company of the Volunteer Fire Department of the Village of Tarrytown in said county, arising out of the rejection of plaintiff's application for membership in said Company and declaring: that said rejection was wrongful, void and illegal; that plaintiff should be and is a duly elected member of said Company; and ordering defendant, its officers and members, to confirm and establish and to refrain from interfering with such membership.
Plaintiff alleges that his rejection for membership violates the provisions of Rev. Stat. § 1979 (1875), 42 U.S.C. § 1983; 78 Stat. 246 (1964), 42 U.S.C. § 2000b (1964); 78 Stat. 252 (1964), 42 U.S.C. § 2000d (1964); the 14th Amendment of the Constitution of the United States; Art. 1, § 11 of the Constitution of the State of New York; Article 15 of the Executive Law of the State of New York; and the Governor's Code of Fair Practice established by Executive Order on January 1, 1960.
Defendant has moved herein, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, to dismiss the action on the ground that this Court lacks jurisdiction over the subject matter, and on the further ground that the complaint fails to state a claim upon which relief can be granted.
Plaintiff has cross-moved, pursuant to Rules 12(c) and 56 of the Federal Rules of Civil Procedure, for summary judgment.
It would appear from the complaint herein that plaintiff, a 36-year-old Negro, is and has been a resident of Tarrytown, Westchester County, New York, for over twenty years; that he is and has been gainfully employed in said county, is of good physical and mental health, and has never been arrested or convicted of a crime.
The defendant is a membership corporation organized and existing under the Laws of the State of New York, and more particularly is a Volunteer Fire Company of the Volunteer Fire Department of the Village of Tarrytown, County of Westchester, New York (hereinafter referred to as "Fire Company"). See N. Y. Village Law § 203.
Plaintiff, desiring to become a member of said Fire Company, duly applied for membership some time prior to February 3, 1966, his application being sponsored by the Mayor of the Village of Tarrytown, a member of defendant.
Plaintiff alleges that his application was duly investigated by defendant's Investigating Committee, approved, and put to the general membership for a vote at a membership meeting on February 3, 1966.
The Constitution and By-Laws of defendant (Article VII, Sec. 2) provide that a negative vote by three ballots is enough to reject an application for membership.
Plaintiff further alleges that there were five applications for new members on the ballot for vote on said date, the other four applicants being non-Negroes. Two of said applicants were not even residents of the Village of Tarrytown. All four white applicants were admitted to membership but plaintiff was denied membership without any reason given therefor by defendant.
Plaintiff alleges, upon information and belief, that the vote against his admission was 27-to-5,
and that his application was rejected solely because he was a Negro, that no previous applicant has been denied membership in defendant, and, further, that no Negro has ever been a member of defendant during its entire existence, nor, in fact a member of any company of the Volunteer Fire Department of the Village of Tarrytown. Finally, he alleges that for the reasons hereinafter set forth, volunteer fire departments are quasi-governmental agencies of the State of New York.
Although the plaintiff does not specify the particular grounds for the jurisdiction of this Court, it seems clear that he is predicating such jurisdiction on Title 28 U.S.C. § 1343(3) (1964) which grants to the Federal district courts original jurisdiction of any civil action authorized by law to be commenced by any person:
(3) To redress the deprivation, under color of any state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens ...