
    Peter J. Higgins, Appellant, v. The City of New York, Respondent.
    
      Telegraph linemen attached to the Brooklyn police department — they did not become patrol/men in the New York force under the charter of 1897, nw entitled to patrolmen’s salary.
    
    Chapter 346 of the Laws of 1887, providing, “ The telegraph superintendent telegraph operators, and telegraph linemen attached to the telegraph bureau of "the department of police and excise in the city of Brooklyn shall hereafter be ■ included in the police force of the city of Brooklyn, and, except that they shall not be liable to patrol duty, shall be subject to all the rules of the department and possess the same rights and privileges as other members of the force,” which was in substance incorporated in the charter of the city of Brooklyn (Laws of 1888, chap. 583) and was in force at the time the Greater New York charter (Laws of 1897, chap. 378) went into effect, did not operate to transform linemen into police officers of the rank of patrolmen.
    Consequently, such linemen, when transferred to the service of the city of New York by the operation of the Greater New York charter, did not become entitled to receive the same salary as patrolmen in the uniformed police force of the city of New York.
    
      Qurnre, whether, under the provisions of section 378 of the Greater New York charter, such linemen are members of the police force of the city of New York except in the capacity of employees.
    Appeal by the plaintiff, Peter J. Higgins, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of June, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of action.
    
      C. Elliott Minor, for the appellant.
    
      William J. Carr [D. D. Whitney, Jr., with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff brings this action to compel the defendant to pay to him an increase of salary amounting to $200 per annum from the 1st day of January, 1898. The plaintiff was appointed to the position of telegraph lineman on the 21st day of September, 1.887, in the then city of Brooklyn, and the theory of this action is that at some time, through the various changes in the charters of Brooklyn and the transforming of that city into a constituent borough of the City of New York, he has been changed into a patrolman of the first class and that he is entitled to the compensation fixed for such officers. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action ; the demurrer was sustained by the court at Special Term, and from the interlocutory judgment appeal comes to this court.

The plaintiff alleges in his complaint that he received $1,200 per annum from the old city of Brooklyn from the time of his appointment up to January 1, 1898, and that since January 1, 1898, he has received $1,2ÓQ per annum from the city of New York. It does not appear from his complaint, which is all. that is before us upon this appeal, that he ever made any claim that he was not being paid all that was due him from time to time. He has, as we may assume from the ordinary course of business in dealing with public Officers, servants and employees, received, his compensation from time to time through warrants upon the proper officers, and he has been paid all that he claimed, and all that there was any provision for paying. He now asks the courts to so construe the statutes as to make him a patrolman in the uniformed police force of the city of New York, and to compel the city of New York to pay him something over $600 of extra compensation.

It is conceded that prior to 1887 the telegraph linemen connected with the telegraph bureau of the police department of the city of Brooklyn were simply employees, but it is claimed that by the provisions of chapter 246 of the Laws of 1887 their status was changed. The statute referred to provides : “ The .telegraph superintendent, telegraph operators, and telegraph linemen attached to the telegraph bureau of the department of police and excise in the city of Brooklyn shall hereafter be included in the police force of the city of Brooklyn, and, except that they shall not be liable to patrol duty, shall be subject to all the rules of the department and possess the same rights and privileges as other members of the force.” This we are asked to construe as evidencing an intention on the part of the Legislature to transform linemen into police officers of the rank of patrolmen, but we are unable to spell out such an intention. The fair import of the language is that the telegraph bureau is to constitute a portion of the police force of the city, to be subject to the same rules and regulations, and to be given the same rights and privileges as other members of that force, but without in any manner changing the rank or character of the individual members. Substantially the same provision is incorporated in the charter of the city of Brooklyn, enacted in 1888 (Laws of 1888, chap. 583, tit. 11, § 4), and this was the law prevailing at the time the Greater New York charter went into effect on the 1st day of January, 1898. In the charter (Laws of 1897, chap. 378) section 278 provides: “ The superintendent and deputy superintendent of police, and each inspector, captain, sergeant, detective-sergeant, roundsman, patrolman, doorman, bridge-keeper, police surgeon, superintendent of telegraph, and telegraph operator, who is, when this act takes effect, in, of, or attached to the police force of the city of Brooklyn, or the police force appointed by the department- of parks of said city, * * * shall be members of the police force specified in section two hundred and seventy-six of this act,” so that it is very doubtful whether the plaintiff in the present action is in fact a member of the police force of the city of New York at all, except in the capacity of an employee. At least, we are unable, from a reading of the plaintiff’s complaint, to discover facts sufficient to constitute a cause of action against the defendant.

The interlocutory judgment should be affirmed, with costs.

Goodrich, P. J., Bartlett, Hirsohberg and Sewell, JJ., concurred.

Interlocutory judgment affirmed, with costs.  