Matlock v. New Hyde Park Fire District , 194 N.Y.S.2d 276 ( 1959 )

Fred J. Munder, J.

This is a motion by the defendant, New Hyde Park Fire District, under subdivision 4 of rule 106 of the Buies of Civil Practice to dismiss the complaint on the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action.

The action is one to recover damages for the willful failure of the members of the fire departments in the defendant districts to extinguish a fire in plaintiff’s home because of a jurisdictional dispute among the firemen on the scene.

The motion must be granted. In Hughes v. State of New York (252 App. Div. 263, 265) it was said: “It is well settled that a municipal corporation is not responsible for the destruction of property within its limits by fire which it did not set, merely because, although it had established a fire department, through the negligence or other default of the corporation or its employees the members of the fire department failed to extinguish the fire, whether this failure is due to an insufficient supply of water, the neglect or incompetence of the firemen or the defective condition of the fire apparatus.”

Submit order accordingly.