People ex rel. McKay v. York ( 1898 )

VAN BRUNT, P. J.

We might very well base our affirmance of the order appealed from upon the well-considered opinion of Mr. Justice BEEKMAN in the court below, were it not that he makes-no reference to two sections of chapter 960 of the Laws of 1896, upon which the appellant now bases his claim that there was error in the court below. It is contended by the appellant that by sections 7 and 13 of said law it' clearly expresses that the purpose which the legislature sought to accomplish was to make doormen members of the police force of Richmond county. By section 7, among other things, it is provided that the salaries of the officers and- members of said department of police shall not exceed certain rates per annum—among which are enumerated doormen; and, further, that said salaries shall be subject to the deduction therein directed to be made for the benefit of the pension fund. And by section 13 it was further provided' that the commissioners of police should have power, in their discretion, on conviction of a member of the force for any criminal offense of neglect of duty, to punish the offending party by reprimand, forfeiture, and withholding pay for a specified time, or suspension or dismissal from the force, or, if he be an officer other than doorman or patrolman, by reducing him to any grade below that in which he was acting. In view of the repeated provisions of the statute to which Mr. Justice BEEKMAN has referred, showing that it was not the intention of the legislature to treat doormen as members of the police force, this incidental mention of doormen in the fixing of salaries to be paid to the police cannot possibly be held to make them members of the force. And, even if it did, section 280 of the new charter states what members of the police force of the county of Richmond should be members of the police force of the new city. It says that the captain and each sergeant, roundsman, and patrolman of the police force of the county of Richmond shall be members of the police force specified in section 276 of the act. How a doorman can become a member of the police force of the new city under this section it is difficult to imagine. ' The intention of the legislature is explicit and unmistakable.

It is further claimed upon the part of the appellant that the rule is well settled that an appointment can be made by acquiescence as well as by direct appointment; and from the circumstance that the appellant continued in office for nearly two months after January 1, 1898, and was permitted to perform the duties of doorman in the New York police force during that time, it is claimed that a new appointment may be presumed. But the learned counsel has carefully refrained from citing any authority in support of his proposition. It would certainly be a novelty in jurisprudence if it had been held that an appointing power can, by acquiescence, confer an office which it had no power to confer by direct appointment.

The order should be affirmed, with costs and disbursements. All concur.