Opinion
May 16, 1952.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Piper, JJ. [ 195 Misc. 674.]
Order and resettled order reversed on the law and facts, without costs of this appeal to any party, and matter remitted to the Special Term for further proceedings in accordance with the memorandum. Memorandum: We agree with the Special Term that petitioner was appointed a temporary fireman pursuant to the provisions of chapter 47 of the Laws of 1943 and further that if he received injuries or became ill "as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment" he was entitled to the benefits provided for by section 207-a Gen. Mun. of the General Municipal Law. While no answer was interposed, and it does not appear that an application was made to the Special Term for leave to answer, it does appear that the affidavits presented on the motion to dismiss the petition raised certain questions of fact that should be decided before a final order is made determining the rights of the petitioner. Among those questions are: the injuries received by the petitioner and the times and places and circumstances under which the injuries were received; whether or not petitioner has recovered from those injuries; the facts in reference to petitioner's original appointment and reappointments, if any; any other facts which may be material in determining the rights and liabilities of the parties to this proceeding. We think appellant should be permitted to serve an answer and petitioner permitted to reply thereto so that all the issues of fact may be determined. All concur, except Taylor, P.J., who dissents and votes for reversal and for dismissal of the petition on the ground that petitioner's rights, if any, under section 207-a Gen. Mun. of the General Municipal Law terminated when his employment as a temporary fireman ceased. (War Emergency Act, § 34-b; L. 1943, ch. 47, repealed by L. 1946, ch. 445.) (Appeal from order and resettled order directing defendant to pay to petitioner his salary as fireman for the City of Oswego, pursuant to General Municipal Law, § 207-a.)