Opinion
January 30, 1950.
Present — Nolan, P.J., Johnston, Sneed, Wenzel and MacCrate, JJ.
In an action to recover for personal injuries and property damages, resulting from a collision at a street intersection between an automobile, owned and operated by respondent, and an ambulance, operated by appellant McCarthy and owned by the Port Washington Fire Department, appellants pleaded as a defense that, at the time of the accident, appellant McCarthy was a volunteer fireman and that the ambulance was being driven by him in the exercise of his duties as a volunteer fireman. Judgment in favor of respondent, entered on the verdict of a jury, unanimously affirmed, with costs. The evidence was insufficient to establish that appellant McCarthy, in the operation of the ambulance, was performing his duty as a volunteer fireman, within the meaning of section 205-b Gen. Mun. of the General Municipal Law (cf. Matter of Urban v. Town of Pendleton, 134 Misc. 782), and the finding, implicit in the verdict, that respondent was free from contributory negligence, is supported by the evidence.