Renn v. Kimbark

70 A.D.2d 994, 418 N.Y.S.2d 160, 1979 N.Y. App. Div. LEXIS 12633

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1979
• Status: Published

Opinions

— Appeal from a judgment of the Supreme Court, entered January 17, 1978 in Ulster County, upon the decision of the court at a Trial Term, without a jury, which declared that the 2% tax levied by sections 553 and 554 of the Insurance Law continue to be paid to the Kingston Fire Department Fund, Inc. Generally, voluntary firemen have no preference over paid firemen in sharing the 2% tax levied by sections 553 and 554 of the Insurance Law on fire insurance premiums paid by insureds to foreign insurance companies for insurance coverage on properties within the city (Wilcox v Schenck, 52 AD2d 349; Cary v City of Oneida, 158 App Div 773). Trial Term found that the general rule had been, in this case, superseded by special legislative enactments. We concur. The Fire Department of the City of Kingston was established by special law (L 1879, ch 325, § 1) at a time when fire protection was rendered totally by voluntary fire companies. In 1907, the City of Kingston established a paid fire department and it is a part of the Fire Department of the City of Kingston (see Kingston City Charter, § 107). In 1915, a provision was inserted into the Kingston City Charter (L 1915, ch 611, § 30; Kingston City Charter, § 106) which directed payment of the 2% fire insurance premium tax to the "treasurer of the * * * board of fire commissioners” and then to the treasurer of the "fire department of the City of Kingston” as it was chartered in 1879, instead of direct payments to the board of trustees of the fire department, as had been the case since 1879 (L 1879, ch 325, § 5). In 1939, another special law directed that the treasurer of the board of fire commissioners pay to the exempt Firemen’s Association of the City of Kingston, a proportion of the 2% fire insurance premium tax which represented the ratio of the number of disbanded volunteer companies to the number of volunteer companies in existence on January 1, 1939 (L 1939, ch 734, § 1). Trial Term concluded that since the special enactment provided that the Exempt Firemen’s Association would get all of the tax proceeds in the event that every volunteer fire company disbanded, the paid firemen were not entitled to any portion of these proceeds. This seems to be the clear import of that provision and any resulting inequity must be remedied by the State Legislature or the City of Kingston, not by the courts (see Exempt Volunteer Firemen’s Assoc. of Lockport v City of Lockport, 31 AD2d 311; Fire Dept. of City of Rochester v City of Rochester, 23 AD2d 183, affd 16 NY2d 933). Judgment affirmed, without costs. Mahoney, P. J., Greenblott and Main, JJ., concur.