
    The People of the State of New York ex rel. Leslie G. Holleran, Respondent, v. James Creelman and Others, as Commissioners, Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    First Department,
    December 1, 1911.
    Civil service — increase of salary — change of grade ■—promotion.
    Where the board of water supply of the city of New York increased the salary of an engineer from $2,000 to $2,400 per annum, stating in its notice that the engineer was promoted from one grade to another, and the increase actually brought him into a higher grade under the classification of the municipal civil service commission, there was a “promotion” within the meaning of the Civil Service Law, and the engineer is not entitled to a writ of mandamus commanding the civil service commissioners to certify him on the payrolls at the increased salary.
    Appeal by the defendants, James Creelman and others, as Commissioners, constituting the municipal civil service commission, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of September, 1911, granting the relator’s motion for a peremptory writ of mandamus commanding the said civil service commission to certify on the payrolls that the relator’s salary was increased to $2,400.
    
      Clarence L. Barber, for the appellants.
    
      L. Laflin Kellogg, for the respondent.
   Miller, J,:

Prior to October 15, 1906, .the relator took a competitive civil service examination for the position of assistant engineer to the board of water supply, pursuant to a public notice, stating that the salary was $1,350 per annum. He was successful and was appointed to the position at a salary of $1,350. On September 21, 1909, the salary was increased to the sum of $2,000. He claims that on February 21, 1911, the board of water supply increased his salary to $2,400 per annum, to take effect March 1, 1911. The defendants, who constitute the municipal civil service commission, have refused to certify the relator’s name on the payroll at the-increased salary, and this proceeding was instituted to compel them to do so.

The question is whether the increase of salary constitutes a promotion. The board of water supply was created pursuant to chapter 724 of the Laws of 1905, which' by section 1 provided that they should have power to select and appoint “a secretary and such engineers, surveyors, draughtsmen, stenographers, clerks and employees as may be necessary, and to fix their compensation.” If the board of water supply, pursuant to express statutory authority, had fixed the relator’s salary at $2,400, it might be urged with much force that that act did not constitute a promotion within the meaning of the Civil Service Law and rules. However, it quite plainly appears from this record that, prior to the attempted increase of the relator’s salary, the board of water supply had fixed the salaries of their appointees according to grades, and that the action relied upon by the relator was intended by the board itself as a promotion and not merely as an exercise of the power conferred upon them by statute to fix salaries. The only evidence in the record on that head is a letter of the board by its secretary to the relator in these words:

“Dear Sir.—At a meeting of the Board of Water Supply, held on February 21, 1911, you were promoted from the position of assistant engineer, Grade B, to the position of assistant engineer, Grade A, with salary at the rate of $2,400 per annum, to take effect March 1, 1911.”

The amended classification adopted by the municipal civil service commission on November 10, 1909, graded the positions in the engineer’s service according to the distinctive character of the work called for by the position, and also according to salary. The first classification included grades 1 to 6 from the position of axeman and heliotroper to that of deputy chief engineer and chief engineer. The position of assistant engineer was in grade 4. The classification according to salary was in grades a, b, c, d and e from $300 to $2,400 annually, grade d being $1,800. Section 16 of the Civil Service Law (Consol. Laws, chap. 7; Laws of 1909, chap. 15), relating to promotion, transfer, reinstatement or reduction, contains this provision: “For the purposes of this section, an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion.”

The respondent relies upon People ex rel. Lodholz v. Knox (58 App. Div. 541; affd., 167 N. Y. 620). The salary of the relator in that case was merely increased from the minimum to the maximum permitted by .the classification of the civil service commission for the grade of the position held by him. He was not promoted from one grade to another, but was allowed the maximum salary of his grade, and, therefore, the decision in that case does not apply to a case where an increase is beyond the maximum fixed for a given grade or position, as was plainly pointed out by Mr. Justice Hatch in People ex rel. Bacon v. Knox (71 App. Div. 306).

The question would be different if the relator’s position had not been graded. (People ex rel. Stokes v. Tully, 108 App. Div. 345.) Apparently the board of water supply established a classification of its own, as its grade “A” does not correspond with grade “A” of the classification of the municipal civil service commission. But however that may be, the only evidence in. the record showing what action was taken by the said-board plainly indicates that it recognized the position of the relator as being in a distinct grade, and that it intended to promote him to a position in a higher grade, namely, from the position of assistant engineer grade “B” to the position of assistant engineer grade “A.” To hold that such a promotion could be made regardless of the Civil Service Law and. rules would be equivalent to holding that positions in that department were not subject to the said law and rules, and we find nothing in the statute to warrant such a conclusion.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.  