
    Albert A. Ultecht et al., Plaintiffs, v. William Allen et al., Composing the Board of Fire Commissioners of the City of Mount Vernon, Defendants.
    (Supreme Court, Westchester Special Term,
    March, 1907.)
    Municipal corporations — Fire department — Power of fire commissioners— Disbanding and reinstating companies.
    Injunction — Who and what may be enjoined — Enjoining fire commissioners.
    The action of the board of fire commissioners of the city of Mount Vernon in disbanding a fire company upon charges preferred by the chief, without notice or hearing, though within the power of the board, is not judicial in its character; and the court will not enjoin the same board, though composed of different members, from later revoking the order disbanding the company and from reinstating it.
    Action by taxpayers for an injunction.
    Joseph F. Wood, for plaintiffs.
    David Swits, for defendants.
   Tompkins, J.

This action is brought by taxpayers to restrain the present board of fire commissioners of the city of Mount Vernon from entertaining a petition by the members of Washington Engine Company ¡No. 1 of Mount Vernon, asking the said board to revoke an order made by a former board of fire commissioners of said city, in ¡November, 1906, disbanding the said fire company, and to restrain the present board from giving a hearing upon the said petition and any charges that may have been the basis of the said order disbanding said, company, and to restrain said board from reinstating the said Washington Engine Company ¡No. 1 as a member of the Mount Vernon fire department.

The action is brought and an injunction pendente lite is now asked for upon the theory that the action of the former board of fire commissioners was judicial in its character, and not subject to review by the present board.

It appears from the papers before me on this motion that, on ¡November 9, 1906, the board of fire commissioners received from the chief of the city fire department a communication in writing making certain charges against Washington Engine Company, and recommending that the company be disbanded. This the board of fire commissioners did, by resolutions adopted at the same meeting, without any notice being given to the company or any officer thereof, and without any hearing or investigation into the facts, other than such as was possible from the statements contained in the said communication from the chief. In short, the action of the board of fire commissioners was summarily taken, without notice to the company and without an opportunity for a- hearing. Such action the board of fire commissioners undoubtedly had a right to take under "section 213 of the city charter; but such action cannot be called judicial in its character so as to prevent a subsequent rescission of the resolution, and this disbandment. If the action of the board was a judicial determination of the right of the company to continue as a member of the fire department, then, without doubt, ,the present board could not rescind or reverse that determination; but to give judicial character to the act of a board or tribunal, the parties, interested in the subject-matter and to be bound by the act or decision, must be before the tribunal in some form, or must have submitted some claim for adjudication, or been cited to answer some charge. Here there was nothing but the arbitrary act of the board, with nothing before it but the written communication of the department chief, as I have already said. The board had a right to take such summary action, but there is no law to my knowledge, nor has my attention been called to any, to prevent the same board, whether composed of the same members or not, from reviewing the former action and, in a proper case, to vacate the resolution of disbandment, and reinstate the company.

The case of People ex rel. Healey v. Fire Commissioners, 27 App. Div. 530, cited by plaintiffs’ counsel, is not an authority for the relief asked in this action.

In that case, the court held that the board of fire commissioners of the city of Auburn had power to disband a company without charges or a hearing, and that the court had no power by writ of certiorari to review or reverse such action — it is not held or intimated that the board itself could not have rescinded its former action.

The personnel of the board of fire commissioners of Mount Vernon is not important. It is a continuing body and legislative in its character and functions. It is given' the right to organize and create new companies, as well as to disband old ones; and it is a matter of legislative discretion whether the board adds an entirely new company to the department or gives life to an old one.

Motion for an injunction pendente lite denied; ten dollars costs to the defendants.

Motion denied, ten dollars costs.  