54 A.D. 334 | N.Y. App. Div. | 1900
Lead Opinion
The relator applied for, and was granted by the court below, a peremptory writ of mandamus requiring the defendants, as commissioners constituting the municipal civil service commission of the city of New York, to certify upon the .payroll of the relator that he had been promoted from the position of roundsman to that of a police sergeant on the police force of the city of New York in pursuance of law and of the rules made in pursuance of law. It appeared by the affidavit upon which this writ was granted that the relator was duly appointed a member of the police force of the department of police of the then city of New York as patrolman on April 14, 1886, and occupied that position until the 22d day of April, 1892, when he was made a detective sergeant; that he continued in the performance of his duty as detective sergeant until .July 20, 1895, when he was transferred to the twenty-seventh precinct; that on June 7, 1896, he was appointed to the position of roundsman of the said police department, and that on May 8, 1900, the board of police of the city of New York duly promoted the relator from the position of roundsman to that of sergeant because of meritorious and heroic conduct in the performance of his duties as roundsman. This promotion was without competitive examination as required by subdivision 4 of section 304 of the charter of the city of New York. The question presented is whether the board of police had the power to promote an officer from a lower to a higher grade in the department without a competitive examination.
At the time the relator was appointed to the police force, appoint-
After the passage of this act, and while its provisions as to the appointment of public officers within the city of New York were in force, this relator was appointed a member of the police force. By
It was the intention, of the Legislature by these provisions- of the charter to provide a system under which all promotions of police officers should be based on seniority, merit and excellence, ‘and that favoritism or personal preference should, so far' as possible, be excluded in considering promotions. The competitive examination was to be an examination under the rules prescribed by the civil service commissioners. The examiners were to consider the record of the police officer, as is shown by the. provision that the board of police was to transmit to the civil service commissioners the record- of each candidate for promotion; and this competition, which was to take place under the regulations established by - the civil . service Commissioners, was thus to. include the police service and the meritorious acts that the officer -who was an applicant for promotion had rendered in the'performance of his duty, as well as such examination as the rules should prescribe as to his fitness for the position to which he sought to be promoted. The clear intent of the Legislature was to take away from the commissioners of police, or their appointees, the right to conduct this competitive examination and to determine which of the officers that had applied for promotion was entitled thereto. In all the provisions in relation- to the appointment, and promotion of
I have thus examined this- question without reference to- the case to which our attention has-been called- (People ex rel. Schelpp v. Knox, 48 App. Div. 477). That case arose under the provisions of law in relation to the city of Brooklyn, prior to the adoption of. the new charter of the. city of Hew York. ■ There an entirely different provision in the charter of the city of Brooklyn had to be construed, arid one which undoubtedly conferred upon the policemen who were members of the. Brooklyn police force an entirely 'different right than was conferred bydlie Hew York Consolidation Act' upon the members of the police force when the relator was appointed., The attention of the court was not called to the provisions of the Civil Service Act relating to the old city of Hew York which aré now before us.; and while .1 should, without hesitation',-follow that decision if it involved the question here under consideration, it seems to mé that an entirely different question is now presented, and for the. reasoris before stated I am satisfied that the rule there-enunciated has no. application to officers appointed to the Hew York police force, and that the relator is not entitled to be promoted, except after the competitive: examination provided for -by the. char- • ter.' The order must, therefore, be reversed, and-the motion for mandamus denied,, with costs.
Van Brunt, P. J., Patterson and Hatch, JJ., concurred; O’Brien, J., dissented.
Concurrence Opinion
The case of People ex rel. Schelpp v. Knox (48 App. Div. 477), which arose in the second department, did not involve the construe-' t-ion of the Consolidation Act, hor the Greater Hew York charter.
Dissenting Opinion
I dissent upon the authority of People ex rel. Schelpp v. Knox (48 App. Div. 479) for the reasons therein given. It is true the question there arose as to the. right of the police commissioners in the late city of Brooklyn to promote patrolmen for gallantry; but the court in that case examined and discussed the question from the standpoint of the power possessed by the police authorities of the former cities of New York and Brooklyn and in that connection,, as said in the opinion: “ It is plain that when the cities of New York and Brooklyn came together to form the Greater New York,, the police authorities in each city were authorized to promote police
Order reversed and motion for mandamus denied, with costs.