(dissenting). Appellant’s testator died from burns received when his residence was destroyed by fire. A claim was presented to the town board under the provisions of section 205 of the *90General Municipal Law, asking that $3,000 be paid to the claimant upon the ground that testator, an active member of a volunteer fire company, died “ from injuries incurred while in the performance of his duties ” as a fireman in connection with the fhe which destroyed his residence. The claim was rejected by the town board and by the county judge of Ulster county. This appeal is taken.
The tragedy occurred following a fishing trip upon which testator was accompanied by a friend Myer. They returned to the residence owned and occupied by testator, who began the preparation of a meal. Myer slept or dozed on a couch in the adjoining room. He was aroused by a hostile fire, went to the kitchen, found testator bringing burlap bags to be used in an attempt to smother the fire caused by grease that had ignited after being spilled from a dish in which fried potatoes were being prepared. The two men were unable to smother or extinguish the fire. The testator requested Myer to go in bis automobile to a residence about an eighth of a mile away to telephone a fire alarm. Upon returning Myer found the testator in the yard being cared for by his cousin and a neighbor and suffering from extensive and frightful burns. The cousin, the first person at the scene after Myer had left, says: u The first thing 1 spied, I saw him in the kitchen door under the flames and all afire. I pulled him outside and took his clothes off. He was burned from his waist up, and stripped the rest of him down. Then Mr. Bowdish came.” Mr. Bowdish says that the testator said, after he had been assisted to the garage, “ Save the dresser; save the dresser.”
The appellant argues that the undisputed facts require a determination that testator died “ from injuries incurred while in the performance of his duties ” as a fireman. This would be true if his activity as a fireman and as a member of the fire company caused him to assume the hazard from which the injuries resulted and he would be in the course of his employment as a fireman although at the same time he was serving some purpose of his own. On the other hand, if the hazard did not arise because of his membership in the fue company, and if he would have been in the zone of danger although he was not a fireman, he was engaged in his own purposes and his representative may not recover under section 205 of the General Municipal Law. (Matter of Marks v. Gray, 251 N. Y. 90; Carroll v. Verway Printing Co., 254 id. 598; Fox v. City of Syracuse, 231 App. Div. 273; affd., 258 N. Y. 550.) Testator was in his own home engaged in cooldng a meal, work entirely disconnected from his firemanic activities. The fire was caused by his act and possibly his negligence. Personal loss to *91him, would follow the destruction of the house and contents. He did not act as a fireman when he sent his friend to summon the fire company but as a property owner whose house was in peril. He acted in the same capacity in continuing his efforts to extinguish the fire and to salvage some of the items. He received his fatal burns before the fire company arrived. He was in the burning house and there received his injuries while engaged in his own private purposes.
The order should be affirmed.
Crapser, J., concurs.
The order of the county judge is reversed on the law and facts, with fifty dollars costs and disbursements in this court and with costs in the court below to petitioner, and petitioner’s claim is hereby allowed with interest, and judgment is directed in favor of petitioner and against respondent.
The court reverses findings of facts Nos. 6 and 7 made by the county judge. The court hereby disapproves of and reverses conclusions of law Nos. 1 and 2 contained in the decision of the county judge.
The court makes new findings of fact consisting of the requests to find contained in the proposed findings of fact submitted by petitioner to the county judge and therein numbered 9 and 10. This court finds as conclusions of law the proposed conclusions of law Nos. 1 and 2 contained in the proposed decision submitted by petitioner to the county judge.