Opinion 91-19

This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FIRE DISTRICTS -- Powers and Duties (authority to make gift to fire company); (authority to accept gift of firefighting equipment)
FIRE COMPANY -- Powers and Duties (authority of fire district to make gift to fire company)
CONSTITUTIONAL LAW -- Gifts and Loans (authority of fire district to make gift to fire company)

TOWN LAW, §176(13); STATE CONSTITUTION, Article VIII, §1: A fire district may not make a gift to a fire company of an amount equal to the cost of firefighting equipment previously given as an unconditional gift by a fire company to the fire district.

This is in response to your letter concerning firefighting equipment given to the fire district by a fire company. The fire company originally had purchased the equipment with moneys it received from a criminal defendant in an arson case as part of a plea bargaining arrangement. You informed us that the gift was given to the district unconditionally. The criminal conviction has now been overturned and the company was directed to repay the moneys to the defendant. The company has requested that the fire district, in turn, pay back to the company an amount equal to the cost of the firefighting equipment. You ask whether the fire district may give to the fire company the cash equivalent of the value of the equipment donated.

Fire districts have those powers expressly authorized by statute and those powers necessarily implied therefrom (see Town Law, §176[21]). Town Law, §176(13) authorizes fire districts to purchase apparatus and equipment for the extinguishment and prevention of fires. Although section 176 does not expressly authorize a fire district to accept gifts of firefighting equipment (cf. Town Law, §176[14], relative to acquisition by gift of real property by a fire district), this Office has previously concluded that the power to purchase firefighting equipment and apparatus necessarily implies the power to accept such items as a gift (see e.g. 23 Opns St Comp, 1967, p 528).

In order to effectuate an inter vivos gift, there generally must be an intention on the part of the donor to make the gift, delivery of the gift such as to vest the donee with dominion and control of the property with intent to transfer ownership, and acceptance of the gift by the donee (see, generally, In Re Szabo's Estate, 10 NY2d 94, 217 NYS2d 593; 62 NY Jur 2d, Gifts, §13). It is a general rule that once an unconditional gift is validly executed, it is not revocable in the absence of fraud (see, e.g., Saunders v Regeer, 50 Misc 2d 850, 271 NYS2d 788; 62 NY Jur 2d, Gifts, §§56, 57). Accordingly, once the unconditional gift of firefighting equipment was executed in this instance, the equipment became fire district property and neither the equipment nor its cash equivalent may be returned to the donor fire company unless the fire district is itself authorized to make a gift back to the fire company (see 33 Opns St Comp, 1977, p 102).

Article VIII, §1 of the State Constitution prohibits counties, towns, villages, cities and school districts from making gifts or loans of their money or property to or in aid of any individual, or private corporation, association or undertaking. Fire districts, however, are public corporations distinct from the towns in which they are located (General Construction Law, §66; Town Law, §174[7]) and are not named in article VIII, §1. Therefore, there is no express constitutional bar to a fire district making a gift to a fire company. Even so, a fire district is precluded from making a gift under these circumstances. As noted, a fire district only has those powers expressly or by necessary implication granted by statute. There is no express or implied statutory authority for a fire district to make a gift of fire district property to a private corporation or association, such as a fire company (see, e.g., 1978 Opns St Comp No. 78-658, unreported). Accordingly, in our opinion, the fire district may not make a gift back to the fire company of an amount equal to the cost of firefighting equipment previously given unconditionally by a fire company to the fire district.

May 20, 1991
Joseph H. Pond, Esq., Attorney at Law
Woodbourne Fire District