Opinion
November 7, 1935.
Appeal from Supreme Court of Erie County.
Levant D. Lester, for the appellants.
Harry A. Kulowski [ J. Clement Johnston and Adrian Block of counsel], for the respondent.
Present — SEARS, P.J., EDGCOMB, THOMPSON, CROSBY and LEWIS, JJ.
The facts in this proceeding are similar to those in Matter of Brown v. Stephan ( 245 App. Div. 588) and Matter of Perry v. Stephan (246 id. 677), decided herewith, except in one controlling particular. In this proceeding the petitioner was discharged May 15, 1935, after the effective date (May 1, 1935) of chapter 639 of the Laws of 1935, which amended section 22 Civ. Serv. of the Civil Service Law by making its provisions applicable to "an exempt volunteer fireman as defined in the general municipal law." The petitioner herein cannot avail himself of the provisions of section 114 of the Membership Corporations Law as was done in the Brown and Perry proceedings, supra, because the statute last mentioned was amended by section 8 of chapter 771 of the Laws of 1935 (effective May 6, 1935) by adopting as the qualification of an exempt volunteer fireman those requirements set forth in section 200 Gen. Mun. of the General Municipal Law. In the absence of proof that the petitioner herein, on the date of his dismissal, had qualified as an exempt volunteer fireman within the requirements of section 200 Gen. Mun. of the General Municipal Law, he was not entitled to the benefits of section 22 Civ. Serv. of the Civil Service Law, as thus amended, and his dismissal without a hearing was not illegal.
All concur.
Order reversed on the law, with costs, and petition dismissed, without costs and without prejudice to a new proceeding.