278 A.D. 986 | N.Y. App. Div. | 1951
Appeal from decision and award of the Workmen’s Compensation Board. The issue turns upon the respective liability of two insurance carriers to make payments into the Aggregate Trust Fund in a death ease. The respondent National Grange Mutual Liability Insurance Company insured the Town of Mendon by a standard workmen’s compensation policy and additionally against liability under section 205 of the General Municipal Law. That section provides for certain direct benefits payable in case of death or injury to volunteer firemen. The appellant American Employers’ Insurance Company provided the same scope of coverage to the Mendon Volunteer Fire Co. and Mendon Fire District. The fire district was within the town of Mendon. Decedent was killed in the course of employment as a volunteer fireman and a judgment was rendered by the County Court of Monroe County assessing liability under section 205 of the General Municipal Law, solely against the town on the theory that the statute literally imposes a liability on a town, but not on a fire company or fire district. There was thus an adjudication binding on the town of sole responsibility for the special liability under section 205. Liability for workmen’s compensation begins only where this special statutory liability ends. It is an excess liability. The compensation benefits payable to volunteer firemen shall exist only where regular benefits “exceed” those created by section 205. (See Workmen’s Compensation Law, § 3, subd. 1, group 17.) No liability arose against the fire company or fire
