#### Matter of the Application of the Council Hereinafter Mentioned and of Wilbur R. Seaman, as President of the Council of the Fire Department of the Incorporated Village of Hempstead, N. Y., and as Chief Engineer of Said Fire Department, for a Writ of Mandamus Against Fred S. Baldwin, as Foreman, and William A. Bedell, as Assistant Foreman, of Protection Hose Company No. 3, an Unincorporated Association of Seven or More Persons of Said Department.

(Supreme Court, Nassau Special Term,

February, 1910.)

Rewards — Prizes — Construction of offer — Right to custody.

Where a resident of a town gave its fire department a silver trophy to be contested for by any individual company and to become the permanent property of the company winning it three times; and where one of the fire companies of the town won the trophy at two contests in successive years held under the direction of the fire council, and the third year the council arranged no contest, for reasons they deemed sufficient, but the successful company arranged for a contest and held it without the intervention of the fire council, observing, however, the regulations of the department, the success of the company holding the trophy in the latter contest did not entitle it to the permanent ownership of the trophy, which could he determined only in contests held under the authority of the fire council; but, the trophy having been turned over by the fire council to the company that had succeeded in the two contests held under its authority, that company should continue to hold the trophy until its third victory gives it permanent ownership or some other company defeats it in the yearly contest.

Application made at Special Term, Suffolk county, for a writ of mandamus to compel Protection Hose Company, one of the five companies constituting the fire department of the village of Hempstead, to turn over to the relators a certain prize trophy, consisting of a silver pitcher, goblets and stand, donated by one W. S. Hofstra, to become the property of the company winning if three times.

*382Maxson & Jones (Henry L. Maxson, of counsel), for motion.

Henry P. Keith, for Protection Hose Company, opposed.

Crane, J.

The fire department of the village of Hemp-stead consists of five companies, one engine and one hook and ladder company, governed by a council under section 206 of the Village Law (Laws of 1908, chap. 302), there being no separate fire commissioners. This council consists of thirteen members, ten wardens and three engineers, who, by virtue of the above section, “ have the care, custody and control of all property belonging to the fire department” and “ the control and supervision of the members, officers and employees of the department.” A majority of this council constitutes a quorum and may make and prescribe by-laws for the proper management of the affairs and the disposition of the funds of the fire department, may call meetings of the members, and designate one or more days each year for public exercises, inspection and review.

In the summer of 1907, Mr. W. S. Hofstra, a resident of the town of Hempstead and interested in the maintenance and efficiency of the department, donated a silver trophy to the fire department to be contested for by any individual company and to become the permanent property of the company winning it three times. From his statements and the circumstances it is quite clear that he intended the contests to occur each year thereafter.

Under the above provisions this trophy was the property of the fire department, for the purpose designated, to be controlled by and disposed of by the fire council.

This council accordingly appointed committees and arranged contests on Labor Bay, 1907 and 1908, Protection Hose Company winning on both occasions.

The trophy, it seems, after the first victory was turned over to Protection Hose Company, the winner, to be held until won three times, when it would become the property of the hose company, or until some other company had defeated the Protection Hose Company or won in the yearly contest.

*383When 1909 came, the council, for reasons expressed, by a vote of twelve to one, decided to withdraw the Hofstra trophy from the contest for that year, which action met with a protest "from the Protection Hose Company, the latter arranging, in spite of the fire council’s rules and orders, a competition with the Harper Hook and Ladder Company for the coming Labor Day. It is stated in the affidavits by those favoring the Protection Hose Company that, when the contest took place, the rules and regulations of the department were followed; but what these were it is not stated.

Clearly, it was an unofficial affair. However, the hose company claims the trophy as its property, counting this last match as the third running.

The fire council should have arranged a contest for Labor Day, 1909. The fact that some companies were not ready was no sufficient excuse. The prize was offered so that the men would take interest enough to keep or to get ready.

But, not having planned a contest, what was the consequence? Could any company claim a default, or arrange a private race or contest ? I think not. The fire "council might have been mandamused to hold it, or the donor might have reclaimed his gift and bestowed it upon whom he pleased; but, neither of these things having been done, the trophy remains unwon for the third time, and, the property of no one company. It is yet to be competed for.

The donor gave it to the fire department on certain conditions, leaving it with the council to prepare contests, rules and regulations. Hone other could do these things. Either they were done by the fire council or they remain undone. As the council withdrew the trophy in the third year, 1909, the third contest has never taken place.

It follows that the fire council should at once arrange for the yearly contest for Mr. Hofstra’s trophy to take place at some convenient and seasonable time.

Having engraved their third victory upon the prize, it rests with the Protection Hose Company to make the prophecy come true and wipe out all bitterness by a splendid showing. A fair field and no favor is a spirit, which should despise disputed silverware. Let no emblems adorn the *384halls of Protection Hose Company which do not demand the acknowledgment of every fair-minded man. What badge of honor is to be classed with well deserved respect? Another contest, another victory, no more quarreling.

While the trophy does not yet belong to the hose company and while the third official contest has not yet taken place, yet this motion cannot be granted, as the hose company has the right to hold the trophy, under the rule which seems to have been applied, until another victor has taken it away from them. .

If, on the next official contest, the standard be won by some other company and the Protection Hose Company refuse to give up possession, then this application may be renewed or the appropriate remedy sought.

Application denied, for reasons stated, but without costs.

Application denied, without costs.