People ex rel. Bernard v. Wurster — 96 N.Y. Sup. Ct. 8

Majority

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The People of the State of New York ex rel. Frank Bernard, Relator, v. Frederick W. Wurster, Commissioner of the Fire Department of the City of Brooklyn, Respondent.

Headnote

Brooklyn fire department —facts insufficient to show membership therein.

The fact that a person assisted at fires or wore the costume of a fireman is imma terial in the determination of the question as to whether he was employed simply as a laborer, and as such was not a member of the force for extinguishing fires in the city of Brooklyn.

Ceetioeaei issued out of the Supreme Court, and attested the ‘Tth day of March, 1894, directed to Frederick W. Wurster, commissioner of the fire department of the city of Brooklyn, commanding him to certify and return to the office of the clerk of the county of Kings the matters in relation to the appointment or appointments of Prank Bernard as a member of the fire department of the city of Brooklyn, and all proceedings and testimony had and taken touching the removal of said Frank Bernard from membership in said department, and also to return a full answer to the allegations contained in the petition of the said Prank Bernard.

Edward F. O'Dwyer, for the relator.

Albert G. McDonald and H. O. Wood, for the respondent.

We are of the opinion that the relator herein was employed simply as a laborer, and, as such, was not of the force for extinguish ing fires. The fact that he may have assisted at fires or worn the costume of a fireman is immaterial. He was in the employ of the

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department as a day laborer, and could have been called upon to perform any duty.

Therefore, the writ should be quashed, without costs.

Brown, P. J., and Dykman, J., concurred

Determination confirmed, without costs.