Foy v. City of New York — 129 N.Y.S. 72

Majority

p. 72

FOY v. CITY OF NEW YORK et al.

(Supreme Court, Appellate Division, First Department.

April 21, 1911.)

Headnote

Municipal Corporations (§ 225^[1] )—Fire Department.

The fire commissioner of the city of New York, in the absence of statute prohibiting it, has power to permit the Manhattan Fire Alarm Company, in the .discharge of its business, to connect its wires with the city fire alarm telegraph system, so as to communicate an alarm of fire directly to fire headquarters, instead of compelling notice to be given by pulling the signal in the fire alarm box in the usual way, thus saving time; this not being the loaning or granting of property by the-city to a private corporation.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 225.^[1] ]

Appeal from Special Term, New York County.

Action by James Foy against the City of New York, its Fire Commissioner, and the Manhattan Fire Alarm Company. From an adverse judgment, plaintiff appeals.

Affrmed.

See, also, 128 App. Div. 930 , 113 N. Y. Supp. 1132 .

p. 73

The opinion of Dowling, J., in the court below is as follows;

The plaintiff herein, upon the opening of the trial of this action, abandoned any attempt to prove fraud, collusion, or bad faith upon the part of the-fire commissioner in permitting the defendant corporation to do the acts complained of, and the sole question now remaining for consideration is-whether the commissioner has the power to permit defendant corporation, in the discharge of its business, to connect its wires with the city fire alarm telegraph system, so as to communicate an alarm of fire directly to fire headquarters, instead of compelling notice to be given by pulling the signal in the fire alarm box in the usual way.

It cannot be disputed that the more speedy method of sending an alarm, of fire is preferable, not only for the earlier opportunity afforded of extinguishing the fire, but for the equally important purpose of_ preventing its spread to other property. But this would not justify the permission given by the fire commissioner, if it contravened the language or spirit of the statutes. I am unable, however, to find any provision of law cited by the-learned counsel for plaintiff in their carefully prepared brief which prohibits the granting of the permission heretofore given by the commissioner. The adequacy of the consideration therefor does not come before the court for-determination; nor do the acts complained of constitute a loaning or granting of property by the municipality to a private corporation.

In deciding that plaintiff is not entitled to the relief sought, I do not determine that defendant corporation has any right to maintain the overhead wires which it concededly has strung. On the contrary, I believe them to be-maintained in clear violation of the law. But relief as to that situation cannot be given in this action upon the present state of the pleadings.

Judgment in favor of defendants, with costs. Let the decision and judgment herein be settled on notice.

Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT,, and MILLER, JJ.

- M. Hare, for appellant.

C. L. Barber and C. Blandy, for respondents.

Judgment affirmed, witti costs, on opinion of' Dowling, J., in the court below. Order filed.