I dissent and vote to affirm the order insofar as it applies to defendant Gene D. Keillor.
The validity of the affirmative defense of the owner, defendant Gene D. Keillor, hinges on the construction of two legislative enactments relating to liability arising from the negligent operation of a motor vehicle. Essentially, our task is to determine whether their provisions so collide as to be conflicting, and to resolve such a conflict, if any exists. Our approach to the task must be governed by the admonition that we are bound ‘1 in interpreting a statute, to construe it in view of other statutes relating to the same subject-matter, in accordance with the sense of its terms and the intention of the framers of the law ”, and to harmonize their provisions (Town of Putnam Val. v. Slutzky, 283 N. Y. 334, 343; Wood v. City of New York, 274 N. Y. 155, 159; 2 Sutherland, Statutory Construction [3d ed.], § 5201, pp. 531-532).
Section 388 of the Vehicle and Traffic Law, imposing liability on the owner of a motor vehicle for the negligence of an operator, was first enacted in 1924 in substantially its present form (L. 1924, ch. 534, as Highway Law, § 282-e; later as Vehicle and Traffic Law, § 59). It was the purpose of the statute to change the common-law rule that an owner might be held responsible for the negligence of a competent operator only on the theory of agency (Van Blaricom v. Dodgson, 220 N. Y. 111) or respondeat superior (Potts v. Pardee, 220 N. Y. 431), and to fix liability rather on the consent of the owner to the use of the motor vehicle. Nonetheless, the liability of the owner at common law on the theory of respondeat superior was not displaced; it continued with the same effectiveness (Irwin v. Klein, 271 N. Y. 477, 484; Gochee v. Wagner, 257 N. Y. 344, 347). The intent of the statute to benefit the person injured through the negligence of the operator was all the more demonstrated by the contemporaneous requirement that insurance policies issued to the owner must contain an indemnity against the liability imposed on the owner (Insurance Law, § 109, as amd. by L. 1924, ch. 639; now Insurance Law, § 167, subd. 2; cf. Mills v. Gabriel, 259 App. Div. 60, 61-62, affd. 284 N. Y. 755). Hence, the legislative policy *10clearly was to grant to an injured party a right of action against the motor vehicle owner for the negligence of the motor vehicle operator using the vehicle with the owner’s consent.
In 1959 the solicitude of the State for the person injured by the negligent operation of a motor vehicle was deepened by the enactment of the Motor Vehicle Financial Security Act (Vehicle and Traffic Law, art. 6; L. 1959, ch. 775). The purpose of that act was thus stated: “ The legislature determines that it is a matter of grave concern that motorists shall be financially able to respond in damages for their negligent acts, so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them” (Vehicle and Traffic Law, § 310, formerly Vehicle and Traffic Law, § 93).
The liability of a volunteer fireman for injury due to his negligent operation of a motor vehicle is determined by a complex of statutes (Greneral Municipal Law, §§ 205-b, 50-a, 50-b, 50-c). At common law a volunteer fireman was liable for his torts (Ottmann v. Village of Rockville Centre, 275 N. Y. 270, 273), and the municipality which was his master was shielded by the doctrine of governmental immunity (Matter of Evans v. Berry, 262 N. Y. 61; 4 Restatement, Torts, § 888, Comment c). The effect of these statutes was to remove governmental immunity from the municipality and to confer on the volunteer fireman an immunity from liability for his negligent operation of a motor vehicle in the performance of duty (cf. Nardone v. Milton Fire Dist., 261 App. Div. 717, 720, affd. 288 N. Y. 654). We may fairly infer that the legislative policy was designed to protect the volunteer fireman performing a service for the benefit of the community and to visit upon the community the liability arising out of his service.
The statutes are silent, however, with respect to the existing liability imposed by section 388 of the Vehicle and Traffic Law or its predecessors upon the owner of a vehicle operated by the fireman; the immunity granted to the volunteer fireman is personal to him and may not be extended, unless plainly commanded by the intent of the Legislature. “ It is a well-settled rule in this State that a party has a right to sue on any cause of action which he holds, and any statutory exception to that right must be distinctly expressed ” (Saxe v. Peck, 139 App. Div. 419, 420; cf. Seligman v. Friedlander, 199 N. Y. 373, 376). We must be mindful of the limits of the function of the judicial process in treating legislation. Chief Judge Leakned Hand has said: “It is always a dangerous business to fill in the text of a statute from its purposes, and, although it is a duty often *11unavoidable, it is utterly unwarranted unless the omission from, or corruption of, the text is plain” (Harris v. Commissioner of Internal Revenue, 178 F. 2d 861, 864 [C. C. A. 2d]).
Beading the statutes under consideration in the light of their objectives, I find no conflict in either the language of their provisions or the spirit of the public policies which gave them birth. Though the operator of a motor vehicle may be a volunteer fireman who enjoys immunity for his negligent acts, the party injured as an outcome of. the fireman’s negligence still may maintain a cause of action against the owner who loaned the vehicle to the fireman. This result is consistent with the general principle that the immunity of one tort-feasor does not inure to the benefit of a second tort-feasor (Schubert v. Schubert Wagon Co., 249 N. Y. 253; Riemers v. Clark, 252 App. Div. 892; Schomber v. Tait, 207 Misc. 328; Contino v. Baltimore & Annapolis R. R. Co., 178 F. 2d 521, 525 [C. C. A. 4th]; see, also, 4 Restatement, Torts, § 880; 2 Harper and James, Torts, § 26.16, p. 1425).
Nor do I regard the result to inflict an unreasonable hardship on the defendant owner. She may assert her rights under the theory of common-law indemnity against the municipality which appointed the fireman, for as between the vicarious liability of the owner under statute and the vicarious liability of the municipality under respondeat superior and the statute, the burden of the loss should be imposed upon the municipality as the party upon whose business the operator was acting at the time of the happening of the injury (Traub v. Dinzler, 309 N. Y. 395, 400); and the action of indemnity accrues when payment to the injured party has been made by the defendant owner (Milstein v. City of Troy, 272 App. Div. 625).
The objectives of the public policies underlying the statutes here involved are satisfied by restricting the immunity from liability to the volunteer fireman alone. The right of an injured party to recover against the owner of a vehicle for the negligence of a person operating the vehicle with the permission of the owner is enforced; the exemption from liability of the operator as a volunteer fireman in the performance of his duty is recognized; and the loss is ultimately borne by the municipality, whose responsibility it is made by law.
Neither Naso v. Lafata (4 N Y 2d 585), nor Rauch v. Jones (4 N Y 2d 592), holding that an injured workman who is a passenger in a vehicle driven by a fellow employee may not sue the owner of the vehicle because the Workmen’s Compensation Law provides an exclusive remedy, has application here. *12The injured plaintiff in this action has no other remedy except the cause of action which the common law and statutes have afforded to him.
Hence, I concur in the dismissal of the appeal by defendant Ronald Keillor, but dissent from the reversal of the order as to defendant Gene D. Keillor and vote to affirm the order as to that defendant.
Kleineeld, Acting P. J., Brennan and Rabin, JJ., concur with Christ, J.; Hopkins, J., concurs in the dismissal of the appeal by defendant Ronald Keillor, but dissents, with opinion, from the reversal of the order as to the defendant Gene D. Keillor.
Order reversed as to defendant Gene D. Keillor, with $10 costs and disbursements to said defendant, and plaintiff’s motion to strike out her affirmative defense denied.
Appeal by defendant Ronald Keillor dismissed, without costs; he is not aggrieved by the order.