STATE v. SEVENTH REGIMENT FUND INCORPORATED (1999)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered March 27, 1998, which, in a proceeding by the State for possession of military artifacts and other personal property that were donated to the 107th Infantry of the New York National Guard by inter vivos gift and transferred by the 107th Infantry to defendant, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Defendant, a not-for-profit corporation organized for the purpose of promoting the interests and welfare of the 107th Infantry's members and caring for its property, fails to adduce authority for its argument that if a militia unit, like the 107th Infantry, has the right to acquire property by inter vivos gift, it must also have the right to dispose of that property.   Certainly, no cases are cited showing that a militia unit has the right to take inter vivos gifts without the State's consent.   The argument, rather, is an extrapolation of Military Law § 244, which gives militia units the right to dispose of property taken by devise and bequest, and which defendant argues was a legislative response to a gap in the common law that prohibited militia units from taking by devise and bequest while permitting them to take by inter vivos gift.   However, without case law demonstrating the common-law premise of this argument, it must be assumed that the omission from the statute of any mention of property taken by inter vivos gift was intended (see, Matter of Jewish Home & Infirmary v. Commissioner of N.Y. State Dept. of Health, 84 N.Y.2d 252, 260, 262, 616 N.Y.S.2d 458, 640 N.E.2d 125).   We would add that even if the 107th Infantry did organize itself into an unincorporated association under Military Law § 260, it remains part of the New York State Militia, and, as such, is a branch of the State that is required to hold the subject property in trust for the State (see, Veterans of the Seventh Regiment v. Field Officers of Seventh Regiment, 14 N.Y.S. 811, 816-817).

MEMORANDUM DECISION.