People ex rel. Albertson v. McAdoo , 92 N.Y.S. 1004 ( 1905 )

Leventritt, J.

This is an application to restore the relator to the position of inspector in the police department. The material facts stand practically undisputed. So far as there is conflict the averments of the answering affidavits must be taken as true, as the application is one for a peremptory writ. People ex rel. Pumpyansky v. Keating, 168 N. Y. 390. On June 23, 1903, the then police commissioner assumed to appoint the relator and two others to inspector-ships in the police department, acting under the belief that vacancies existed. The charter provides for fifteen inspectors. § 276. On February 1, 1903, there were twelve inspectors. Various appointments were made and retirements occurred during February and March. On March sixth the number was full. On the fifteenth of May there was a further vacancy by the retirement -of another inspector. The then police commissioner, however, assumed that three vacancies existed by virtue of the dismissal after trials had of Inspector Grant on February fourth and of Inspector Cross on May sixth. Three appointments were thereupon made, that of the relator and two others, one-of whom by virtue of being a veteran was entitled to preference. The relator entered upon the performance of his duties and became" a de facto inspector. Thereafter the dismissed inspectors, having taken their cases to court, the Appellate Division, prior to December 22, 1904-, annulled the proceedings dismissing them and directed their reinstatement. On the last-mentioned date an order was made by the police commissioner by which the relator and another were “ directed to resume the duties of captain of police respectively, out of which the police commissioner * * * illegally and unsuccessfully endeavored to promote them.” No charges were preferred against the relator and the removal was solely on the ground of a lack of power to promote. On these facts it is difficult to see what standing the relator has to maintain this proceeding. The law allows but fifteen inspectors; neither the police commissioner nor the courts can, by construction, increase this number. When the relator was designated inspector there was but one vacancy, to which the veteran was entitled. Inspectors Cross and Grant were still de jure inspectors, entitled as a matter of law to the salary of the office as an incident to it, unless it had been paid to a de facto incumbent, and entitled even then to maintain an action to recover its amount against the de facto officer. Stemmler v. Mayor, 179 N. Y. 473. In other words, they never ceased to be inspectors. When the commissioner assumed to appoint the relator he had no authority to do so, because there were no vacancies: the promotion was illegal. The relator, therefore, never “ held ” the position within the meaning of the Civil Service Law requiring charges and a. hearing before removal and reduction. The manner in which the police commissioner proceeded seems the proper practice. People ex rel. Short v. Fire Commissioners, 47 Hun, 528, affd., 114 N. Y. 67. The motion must be denied.

Motion denied.