
    The People of the State of New York ex rel. William H. Allen, Appellant, v. Bernard J. York, President, and John B. Sexton and Others, Composing the Board of Police Commissioners of the City of New York, Respondents.
    
      Police force of New York city — transfer to, of a sergeant of the Plushing police force—his position on the New York force.
    
    The transfer of the members of-the police force of the village of Flushing to the police force of the city of Hew York, by the operation of section 280 of the Greater Hew York charter, entitled the transferred members to retain the rank which they held as members of the village police force only until the board of police of Hew York city fixed their rank pursuant to the power conferred upon it by section 281 of the charter.
    Where, upon the refusal of the board of police to recognize a sergeant thus transferred as a member of ike police force of the new city, he obtains a peremptory writ of mandamus requiring the board of police to restore him “to the position of patrolman,” and, after acting as patrolman for over a year, he applies to the board of police to be restored to the grade of sergeant, the action of the board of police in denying his application will be considered as a valid exercise of the power to fix his rank conferred upon that board by section 281 of the charter.
    Appeal by the relator, William H. Allen, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of Queens county on the 9th day of January, 1900, denying the relator’s motion for a peremptory writ of mandamus commanding the board of police commissioners of the city of New York to reinstate him in the grade and rank of a sergeant of police.
    
      
      Joseph Fitch, for the appellant.
    
      William J. Carr, for the respondents.
   Willard Bartlett, J.:

On December 21, 1897, the relator was appointed a patrolman on the police force of the village of Flushing. One week later he was promoted to the rank of police sergeant. On January 1, 1898, the village of Flushing became a part of the city of New York, and by the operation of section 280 of the Greater New York charter the relator was transferred to the police force of the city. (Laws of 1897, chap. 378.)

The relator’s membership in the police force of the consolidated city, however, was not at first recognized by the board of police commissioners and he applied to the Supreme Court in March, 1898, for a peremptory writ of mandamus commanding the board to assign him to police service and permit him to perform his duties as a police sergeant. This application resulted in an order directing that a peremptory writ of mandamus issue commanding the board of police to restore the relator “ to the position of patrolman of said city; to permit him to perform his duties as such patrolman; to assign him to duty, and to certify and pay him his salary and com pensation from and including the first day of January, 1898, at the rate of eight hundred dollars per year.”

Under this order the relator appears to have acted as a patrolman upon the police force of the city up to the present time. He applied to the board of police to be restored to the grade of sergeant, and his application was denied on July 25, 1899. The present proceeding was instituted to enforce his claim to be restored to that rank.

It seems to us quite clear that he is not entitled to the relief which he seeks. As was pointed out by this court in the case of People ex rel. Baldwin v. York (44 Apip. Div. 539) the transfer of village policemen to the police force of the new city, which was effected by section 280 of the Greater New York charter, did not carry with it the right on the part of a transferred officer to retain the same rank which he held as a member of the village force. It is true that section 281 declared that, until the board of police provided otherwise, the rank of a transferred member should be the same as it was in the police force to which he had previously belonged. The same section, however, expressly empowered the board of police “ to fix and assign the rank, title, duties, powers and place of service of said transferred members.” In the case of the relator it may be that in the first mandamus proceeding he was entitled to greater relief than was then granted to him, and that the writ which was then allowed should have commanded his reinstatement as a sergeant instead of merely as a patrolman. He seems to have been quite well satisfied with this measure of redress, however, for many months, until he asked the board to restore him to the rank of sergeant and the board refused to do so in July, 1899.

We think that the action of the board at this time may be regarded and should be regarded under the circumstances of this case, as a valid exercise of the power conferred upon thé commissioners by the clause which we have quoted from section 281 of the charter, to fix and assign the rank and duties of members of the police force transferred from other municipalities. The board has done simply what it ought to have done, and the relator has no just cause to complain. Indeed, he should rather be regarded as peculiarly fortunate in having become a member of the permanent police establishment of a great city upon the strength of ten days’ service as a village policeman.

The order of the Special Term should be affirmed.

All concurred, except Woodward, J., absent. r

Order affirmed, with ten dollars costs and disbursements.  