
    PEOPLE ex rel. FAY v. PARTRIDGE, Police Commissioner.
    (Supreme Court, Appellate Division, First Department.
    January 9, 1903.)
    1. Cities-—Police—Detective Sergeants—Office—Detail of Patrolman.
    While New York City Charter, § 276, recognizes the office of a detective sergeant, inasmuch as the mere detail, of a patrolman to perform the duties of a detective sergeant does not make him a holder or occupant of such office, that he is acting as detective sergeant at the time he makes application to be pensioned as such is of no avail to him.
    2. Same—Application for Retirement—Failure to Act—Mandamus.
    On the failure of a police commissioner to act on an application- for,retirement of one as a detective sergeant, the applicant is entitled to mandamus to test his rights.
    Laughlin, J., dissenting.
    Appeal from special term, New York county.
    Mandamus by the people, on the relation of Patrick Fay, against John N. Partridge, as police commissioner of the city of New York, to compel the reinstatement of relator as detective sergeant, and to retire him on a pension of $i,coo a year. From an order denying an application for a peremptory writ, relator appeals. Affirmed.
    Argued before VAN BRUNT, P. J., and PIATCH, PATTERSON, INGRAHAM, and LAUGH El Ñ, JJ.
    John M. Bowers, for appellant.
    Terence Farley,.for respondent.
   HATCH, J.

The relator asks in this proceeding the same relief as was asked in -People ex rel. Eahey v. Partridge, 79 N. Y. Supp. 724, and, further, that upon reinstatement as a detective sergeant he be retired upon a pension of $1,000 per annum. So far as the relator’s right to reinstatement is concerned, it is in all respects governed by the Case of Eahey, and the decision therein is conclusive of the relator’s rights. He shows himself, however, entitled to be retired upon a pension, pursuant to the provisions of section 355 of the charter. The real point in the case is in what capacity he shall be retired, .and. the amount of pension which he'shall receive; The relator’s application was made at a time when he was detailed for service as a detective sergeant, but he was so detailed by virtue of the same authority which we have considered in the Eahey Case. It can make no difference in his status as a patrolman whether he made his application at the time he was performing his duty as a patrolman or whether he was upon special service. He was, nevertheless, a patrolman, and his application is to be considered as such. The charter, by section 276, recognizes the office of a detective sergeant; but, as we have seen, the mere detail of a patrolman to perform the 'duties of a detective sergeant does not make him a holder or occupant of such office or position. Consequently the relator was not entitled to be retired as such, as he has never been legally appointed to such position.

It is claimed by the relator that the defendant never acted upon his application to be retired as.a detective sergeant. The defendant’s failure to act could be construed as a refusal, and, if the relator had shown himself entitled to be retired as a detective sergeant, he might invoke the aid of the writ to accomplish such purpose upon the present proofs. The defendant, however, states in his affidavit that he is willing to retire the relator as a patrolman, with the pension which attaches to such position. This the relator refuses to accept. His application, therefore, is to be treated as. one for a mandamus to compel the defendant to retire him upon a pension as detective sergeant. He must, therefore, fail in this application, for the reasons which we have already assigned.

It follows that the order appealed from should be affirmed, with $50 costs and disbursements. All concur, except LAUGH LIN, J., who dissents.

LAUGHLIN, J.

I dissent from the prevailing opinion, and think the petitioner should be reinstated as a detective sergeant. The amendment to section 290 of the charter made by chapter 466 of the Laws of 1901 was declared unconstitutional by this court (People ex rel. Lahey v. Partridge, 74 App. Div. 290, 77 N. Y. Supp. 691) in so far as it provided that patrolmen- acting as detective sergeants-under detail on the 1st day of April, 1901,—nearly a year prior to-the time the act took effect,—should be and become detective sergeants, even though prior to- the time the act took effect their detail; as detective sergeants had been revoked. I think it quite clear, however, that the entire amendment was not unconstitutional. The legislature clearly manifested that patrolmen then acting as detective sergeants, and those thereafter appointed as such, should not be removed from that position without a hearing on charges. This was obviously the intention of the legislature, and such intention may be given effect, even though part of the amendment be unconstitutional. The petitioner was acting under a detail as detective sergeant at the-time the amendment took effect. It is perfectly competent for the-legislature, in the interest of civil service, to provide that persons employed in the public service, removable at pleasure, shall be continued so long as they perform their duties, and shall be removable only after a hearing on charges preferred against them. This view is in accordance with the conclusions reached in People ex rel. Lahey v. Partridge, supra, but not with the reasons assigned therefor. After.the act took effect, if any part of it was unconstitutional, there was-no longer authority for detailing policemen as detective sergeants, or permitting them to continue to serve as detective sergeants under former details. The petitioner, however, from the time the amendment took effect, without any formal appointment as detective sergeant under the amendment, discharged the duties of the position,, and was recognized and paid his salary as a detective sergeant down-, to the time he made an application for his retirement. This, I think, was equivalent to a formal appointment under the amendment. I am of opinion that the petitioner is entitled to reinstatement as detective-sergeant, and to be retired from that position.  