Opinion
November 10, 1958
Present — Foster, P.J., Bergan, Gibson, Herlihy and Reynolds, JJ.
Appeal by the Village of Watkins Glen and its insurance carrier from so much of a decision and award of the Workmen's Compensation Board as held them liable to claimant and relieved respondents Village of Odessa and its carrier from liability. Claimant was a volunteer fireman and a member of the fire department of the Village of Watkins Glen. He was injured on June 5, 1955 at the Village of Odessa while participating in a test fire drill held pursuant to the Schuyler County mutual fire aid plan. The test drill had been arranged in advance of June 5 by the County Fire Co-ordinator and the fire departments concerned. The participating companies and their membership knew that it would occur at some time on that day. The signal for the drill came by radio from the Chief of the Odessa Fire Department and summoned the participating companies to that village. Appellants rely on section 10 Work. Comp. of the Workmen's Compensation Law, which, as constituted on the date of the accident, provided, in part, that "if an injury occurs to a volunteer fireman while assistance is being rendered to another * * * village * * * upon the call of such * * * village * * * the payment of compensation therefor shall be secured, paid and provided by such other * * * village * * * so issuing the call for assistance." (L. 1952, ch. 387.) It seems clear, however, that here there was no call for assistance within the meaning of the statute. The summons, pursuant to the prearranged plan, was to an exercise, doubtless intended to be instructive and beneficial to all the participants. In context, the term "call for assistance" contemplated an actual need of assistance, as in case of an actual "fire or other public emergency." ( Matter of Cottrell v. Pleasantville Fire Dist.,
279 A D 1124, motion for leave to appeal denied, 304 N.Y. 986.) Decision and award unanimously affirmed, with costs to respondents village and carrier.