Opinion
April, 1911.
Judgment affirmed, with costs, on opinion of Dowling, J., in the court below.
The following is the opinion of Dowling, J.:
The plaintiff herein upon the opening of the trial of this action abandoned any attempt to prove fraud, collusion or bad faith upon the part of the fire commissioner in permitting the defendant corporation to do the acts complained of, and the sole question now remaining for consideration is whether the commissioner has the power to permit defendant corporation in the discharge of its business to connect its wires with the city fire alarm telegraph system so as to communicate an alarm of fire directly to fire headquarters instead of compelling notice to be given by pulling the signal in the fire alarm box in the usual way. It cannot be disputed that the more speedy method of sending an alarm of fire is preferable not only for the earlier opportunity afforded of extinguishing the fire, but for the equally important purpose of preventing its spread to other property. But this would not justify the permission given by the fire commissioner if it contravened the language or spirit of the statutes. I am unable, however, to find any provision of law cited by the learned counsel for plaintiff in their carefully-prepared brief which prohibits the granting of the permission heretofore given by the commissioner. The adequacy of the consideration therefor does not come before the court for determination; nor do the acts complained of constitute a loaning or granting of property by the municipality to a private corporation. In deciding that plaintiff is not entitled to the relief sought I do not determine that defendant corporation has any right to maintain the overhead wires which it concededly has strung; on the contrary, I believe them to be maintained in clear violation of the law. But relief as to that situation cannot be given in this action upon the present state of the pleadings. Judgment in favor of defendants, with costs. Let the decision and judgment herein be settled on notice.