
    Matter of the Application of the Fire Department of Richmond Hill v. John A. Davies, Respondent.
    
    (Supreme Court, New York Special Term,
    August, 1898.)
    Greater New York charter — Status of volunteer fire department in a village of the borough of Richmond — Confirmation of officers by village trustees unnecessary.
    The provisions of the charter of the Greater New York (Laws of 1897, chap. 378, § 722), that the paid fire department shall be extended over the boroughs of Queens and Richmond but that, until this is done, volunteer fire companies shall continue to discharge the duties for which they were incorporated, authorize such a fire department of a village of the borough of Richmond, in which no paid fire department as yet exists, to elect in council a secretary and also to elect a chief and assistant engineer; and the fact that the board of village trustees, abolished by the merger of the village into the Greater New York, cannot confirm the engineers as required by special statutes, does not invalidate their election, as the requirement of confirmation is to be deemed to have been abrogated by the provisions of the Greater New York charter.
    The Fire Department of the Village of Richmond Hill was incorporated under the statute applicable to incorporated villages in 1896. Under that act and chapter 414, Laws of 1897, which is a re-enactment of the Village Laws, the council of the department consisted of two delegates from each company and a chief engineer and two assistant engineers, selected by the companies, in a convention, the composition of which is regulated by the statute. By hoth of said acts the chief and assistant engineers had to be approved by - the village board of trustees before their selection became complete. By the charter of the Greater Hew York, the village of Richmond Hill was merged in the city of Hew York and the village government abolished. At the elections in April, 1898, it was claimed, on behalf of Mr. Davies and Mr. Brinsley, the chief engineer, that there could be no valid election of chief and assistant engineers, as the village board had gone out of existence and there was no confirming power left. Elections were held, and a chief and assistants, other than those then in office, were selected; the council organized, elected a secretary in place of Mr. Davies, and a demand was made on him to turn over the books and property of the corporation, in his hands. He refused, claiming no valid elections had been held. This proceeding was under section 27 of the Corporation Law, to have the validity of the elections passed upon.
    Sanders & Gray (Arthur M. Sanders, of counsel), for application.
    E. G. Benedict, for respondent.
    
      
       Received too late for insertion in proper place.—[Rep.
    
   Stover, J.

This is an application to compel the respondent to deliver books and papers belonging to the corporation to officers of the corporation who are alleged to have succeeded him in office.

Under the provisions of the Village Law (chap. 414, Laws 1897), the several companies constituting the volunteer department of the village were entitled to elect delegates, and to choose the chief engineer and assistants, and also to elect a secretary of the corporation. Under the Village Law it is provided that the persons selected to be the chief and assistant engineers must be approved by the village board of trustees. By chapter 378 of th!e Laws of 1897 (charter of the Greater Hew York) the village of Richmond Hill is destroyed as a corporation, and hence there could be no trustees to approve the action of the council, or of the nomi-, nating power. But the law, at the same time, provides (section 722), that the paid fire department shall, as soon as practicable, be extended over the boroughs of Queens and Richmond, and thereupon the present volunteer fire departments now maintained, shall be disbanded. In the meantime, and until the said paid fire department shall be extended over said territory as herein provided, said volunteer fire companies shall continue to- discharge the duties for which they have been incorporated.

It will be seen that the object of the statute was to, as near as possible, preserve the status of the volunteer fire companies until the paid fire department should be extended; and in order to do that, it is necessary that there should be engineers, assistants, and officers of the fire department corporation, as well as officers of the municipal corporation. There is no provision in the law for the appointment of an engineer or assistant engineer, except under the Village Law, and as has been said, that requires the confirmation of the board of trustees. The statute must be construed, if possible;, so as to accomplish the object which the legislature had in view, and to prevent mischief in the administration of the law. The anomaIons situation was recognized by the legislature; and, therefore, until the greater municipality should assume entire control of the fire department, it was intended that the volunteer department should remain with all its duties, rights and privileges, as it then existed, so far as possible. It did not intend to abolish the right of the volunteer companies to govern themselves within the limits of the law, nor to curtail any of the rightsi and privileges which they enjoyed under the old village laws. And while it is true it has taken away the power of confirmation, it does not necessarily follow that the legislature intended that the right to choose and elect its officers should be abolished; but, it seems to me a fair more reasonable interpretation of the statute is that their rights were still to be exercised, and, as far as possible, preserved; and the confirming power being one of limitation upon those rights, would be deemed to have been withdrawn, and the rights enlarged rather than restricted by the act in question. Having first said you may select your officers subject to the confirmation of the council, and having abolished the confirming power, without in any manner abridging the right to elect, but expressly retaining the powers heretofore existing, it seems to me it is fair to say that the legislature intended that the election should be without the limitation which had before existed.

Some stress is laid upon the statute continuing, the officers in office until their successors have qualified. This can only be said to apply to officers whose successors are provided for in the act itself. In the case of the secretary of the fire corporation, the paid department might never be extended to Queens county, and, therefore, the present incumbent would hold his office during life; for if it should be determined that it is not practicable to extend the paid fire department to the villages in Queens county, the present system would be continued; and if the contention of the respondent is correct, the officers and persons holding positions in those departments now, would never be retired from office, except voluntarily, and then there would be no provision for filling vacancies.

This, as I understand, is the only substantial question involved. The relator having been regularly elected, and so far as within his power and that of the corporation, has complied with the law, he is entitled to hold the position of secretary, and to have the books and papers delivered over to Mm.

Ordered accordingly.  