Opinion
May, 1936.
Judgment in favor of plaintiff against defendants The Incorporated Village of Rockville Centre and Otto Stoye reversed on the law, with costs, and the complaint dismissed, with costs. In our opinion it is not intended by the provisions of section 282-g High. of the Highway Law that a municipality should be held liable for personal injuries to or death of one member of a department thereof due to the negligence of another member of that department while both are engaged in an activity to participate in which is the department's duty. That legislation was for the benefit of wayfarers and occupants of vehicles who are strangers to the immediate service being then rendered in the operation of a municipally-owned vehicle in the discharge of a statutory duty. Section 205 Gen. Mun. of the General Municipal Law provides for a situation such as the one in this case. The determination in this case ( 241 App. Div. 843) involved questions of pleading and seems to have proceeded upon the basis that plaintiff alleged in the complaint that decedent was a passenger on the fire truck, and not a fellow fireman of the operator. The individual defendant is not liable because he and the decedent were performing a governmental service unaffected as to liability by section 282-g High. of the Highway Law. We are also of the opinion that the verdict is contrary to the evidence on the question of negligence. Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.