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ROSELLA SWERDZEWSKI v. INCORPORATED VILLAGE WEST-HAMPTON BEACH (06/17/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 17, 1968

ROSELLA SWERDZEWSKI, AS ADMINISTRATRIX OF THE ESTATE OF FRANK A. SWERDZEWSKI, DECEASED, APPELLANT,
v.
INCORPORATED VILLAGE OF WEST-HAMPTON BEACH, RESPONDENT

Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

In our opinion, fund raising for the benefit of the Fire Department constituted a lawful fireman function prior to 1961. Furthermore, the testimony adduced at the trial discloses that the Chief Engineer of the Fire Department authorized the fund raising campaign and the use of fire vehicles. Moreover, the campaign was publicized in a local newspaper for at least one month and the Village Trustees did not raise any objection to the proposed activity (cf. General Municipal Law, § 204-a, subd. 8, par. [a]). The uncontroverted testimony established that the village did not have a separate Board of Fire Commissioners and, consequently, the Chief Engineer, as president of the Council of the Fire Department, is statutorily endowed with great discretion in the maintenance and operation of the fire equipment (Village Law, §§ 206, 208). Since the Chief Engineer is clothed with the afore-mentioned authority and in light of the apparent apathy exhibited by the Village Trustees, the Village Board, if not expressly, certainly by implication, permitted the use of the fire vehicles in the fund raising campaign. In our opinion, the court below erred in holding that plaintiff's intestate was contributorily negligent or assumed the risk by his mere presence on the running board. The Court of Appeals has held that a volunteer fireman engaged in lawful fireman activities (which we deem to include fund raising) does not assume the risk by riding on the running board (Ottmann v. Village of Rockville Centre, 275 N. Y. 270). Under the circumstances disclosed herein, we do not perceive how the same conduct can be labelled contributory negligence. Accordingly, we have concluded that the village failed in its burden of proof (Decedent Estate Law, § 131 [now EPTL, § 5-4.2]).

19680617

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