
    People ex rel. Peter H. Short v. The Board of Fire Commissioners of the City of New York.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 2, 1888.)
    
    New York (city of)—Fire department—Removal—What is a removal within Laws 1882, chap. 410, § 440.
    The relator was promoted to fill a vacancy supposed to exist in the fire department, by reason of a resolution of the board of fire commissioners assuming to remove a certain person from office. The court annulled said removal, and the said board made an order transferring the relator back to the duties of his position before such attempted promotion. Held, not a removal within the meaning of Laws 1883, chapter 410, section 440.
    Certiorari to review the action of the respondents in transferring the relator from duty as chief of battalion to duty as foreman.
    
      McCall & Arnold, for relator; Wm. L. Findley, for resp’ts.
   Bartlett, J.

On July 21, 1886, the board of fire commissioners of the city of New York passed a resolution whereby they assumed to remove John McCabe from the office of second assistant chief of department. Their action in this respect was subsequently annulled by the determination of this court, but not until March, 1887. In the meantime the board of fire commissioners proceeded on the assumption that the removal of McCabe was lawful, and had created a vacancy. Accordingly, as appears from their return to the writ of certiorari herein, they promoted Francis J. Reilly from the office of chief of battalion to that of second assistant chief of department, to fill the supposed vacancy caused by the attempted removal of McCabe, and thereafter promoted Peter H. Short, the relator, to be chief of battalion to fill the vacancy which they believed had been made by the promotion of Reilly.

It turned out that there was no vacancy at all in either grade. This was established by the decision that the findings and sentence against McCabe should be annulled. People ex rel. McCabe v. Fire Commissioners, 6 N. Y. State Rep., 658.

The attempt to remove him having been adjudged ineffectual in law, it followed that his place was not vacant. The endeavor to promote Reilly was therefore futile, and if Reilly could not be promoted, Short could not be made a. chief of battalion in his stead. The proposition in the brief for the relator that the board appointed Short to be chief of battalion in the exercise of their power to increase the number of such chiefs, and without reference to his filling any vacancy whatsoever, is not sustained by the record, and is distinctly contrary to the express averments of the return. It is plain that both promotions were ordered to fill vacancies, the existence of which depended upon the removal of McCabe; and we think the judgment which pronounced that removal a nullity bad the effect of nullifying both promotions.

In this view, the order of which the relator now complains, transferring him back to his duty as a foreman, is in no true sense a removal within the meaning of section 440 of the New York city consolidation act of 1882. It is merely a proper direction that he resume the duties of an office out of which the board of fire commissioners mistakenly and unsuccessfully endeavored to promote him. It really affords him no just cause of complaint, and the proceedings of the board should therefore be affirmed with, costs.

Van Brunt, P. J., and Macomber, J., concur.  