
    The People of the State of New York ex rel. Thomas Archer,. Respondent, v. William McAdoo, as Police Commissioner of the City of New York, Appellant.
    Second Department,
    January 12, 1906.
    Municipal corporation—patrolman in city of New York not entitled to promotion until one year after period of probation;
    The one month period of probation to "be served by those appointed ás patrolmen, in the city of New York is no ¡part of" the one year during which, they must serve in the seventh grade before promotion to the sixth grade,, and hence they are not entitled to the increased compensation paid to those in the sixth gradé until the expiration of one year from the end of said period of probation.
    Appeal "by the defendant, William McAdoo, as police commissioner, of the city of Hew York, from an order of the Supreme Court made at the Kings County Special Term and entered in the office of the clerk of the county of Kings- on the 25th. day of Hovémber, 1905, granting a peremptory writ of mandamus requiring the appellant to grade tile relator in the sixth grade in the police department as of and from July 13, 1905.
    The relator was appointed a patrolman on probation on the police force of the city of Hew, York on July 13,-1904, and was-thereafter retained. The other necessary facts are in the opinion.
    
      James D. Bell [John J. Delany with him on the.briéf],- for the appellant. " '4
    
    
      P. Percy Chittenden, for the respondent.
   Gaynor, J.:

Section 299 of the city charter (Laws of. 1901, chap. 466, ás amd. by Laws of 1-905, chap. 637) provides that all -. patrolmen shall, on their appointment be members of the seventh, grade, and after doing service therein for one year • shall be promoted to the sixth - grade and receive $100 additional salary. The dispute here is whether the one year’s service begins to run from the date of the appointment, on probation or from one month later when the probation ceases and the permanent .tenure begins. The learned judge below held the former, and by command of the writ the relator would reach the sixth grade and its higher pay one month earlier than if the writ were denied.

Section 8 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by Laws of 1902, chap. 270) provides that “ All appointments or employments in the classified service, except those of veterans of the civil war, honorably discharged from the military or naval service of the' United States, shall be for a probationary term not exceeding the time fixed in the rules; ” and the municipal civil service rule applicable to this case makes the term one month, and provides that if the conduct" or capacity of the appointee be unsatisfactory to the appointing officer, the appointee shall be notified in writing during the probation term that at the end thereof he will not be retained. It then adds that “ his retention in the service otherwise shall- be equivalent to permanent appointment.”

The effect of these provisions is to make the probation period a separate and distinct term, the statute using that very word. It does not run into and become part of the permanent tenure. It ends and there is then an appointment to the permanent tenure. The municipal civil service rule provides that a failure of the appointing officer to notify the probationer during his probationary term that he will not be retained “shall be equivalent to permanent appointment.” This does not destroy the separate identity tif the probation term and the necessity for an appointment to the permanent tenure; on the contrary, the rule intends such an appointment, and provides for an equivalent ” of a formal appointment. The effect is the same as though a formal appointment were made indispensable.

The permanent tenure being separate and distinct from the probation term, the year of service as a patrolman in the seventh grade requisite for promotion by the charter section began at the end of the probation term.

The order should be reversed and the motion denied.

Hirsohberg-, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Order reversed, without costs, and motion denied.  