
    _ The People of the State of New York ex rel. Matthew J. Colbert, Appellant, v. Charles H. Knox and Others, Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    
      An assignment of a patrolman to duty as a roundsman—it is a promotion — a civil service examination must he passed—it is otherwise if it he temporary.
    
    The assignment of a patrolman on the police force of the present city of New York to duty as a roundsman isa promotion, and under sections 288 and 304 of the Greater New York charter (Laws of 1897, chap. 378) and the Civil Service Law (Laws of 1899, chap. 370) can only he done after a competitive examination.
    
      Semble, that if the assignment to duty as a roundsman he temporary, it does not constitute a promotion to the office of roundsman, nor carry with it the right to the increased salary appurtenant to the latter office.
    Appeal by the relator, Matthew J. Colbert, 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 26th day of June, 1900, denying a motion for a peremptory writ of mandamus.
    
      Joseph A. Burr, for the appellant.
    
      William J. Ga/rr \_Iuke B. Stapleton with him on the brief], for the respondents.
   Goodrich, P. J.:

Colbert, the relator, who for many years had been a patrolman on the police force of the city of New York, on June 6, 1899, was assigned to duty as a roundsman by the chief of police." He fulfilled the duties of that position till the time of the commencement of this proceeding. The salary of a patrolman under the Greater New York charter (Laws of 1897, chap. 378) is $1,400 per annum, and that of a roundsman $1,500. The police department placed the relator’s name on the payroll with the larger salary and transmitted the same to the municipal civil service commission for certification that Colbert “ had been appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law.” The commissioners refused thus to certify, and the relator moved for a peremptory writ of mandamus requiring the commissioners'to do so. The court denied the motion and the relator appeals.

In Brooklyn, roundsmen wére enumerated in the composition of the police force in the charter: of that city (Laws of 1888, chap. 583, tit. 11, §§ 4, 6) and so became permanent ■ statutory officers. Since the adoption of the original civil service law they have been classi-' tied in the regulations as subject to' competitive examination, so-that no patrolman was. eligible, to appointment to the higher grade of roundsman without such examination.

Prior to the Greater New York charter there was. no specified. . statutory office of roundsman in the old city of New York, although there were several statutes which in terms referred to patrolmen, designated or detailed as roundsmen, as, for instance, chapter 188, Laws of 1889, section 1, and chapter 741, Laws of 1894, section 2. It was held, in 1896, in People ex rel. Buckley v. Roosevelt (5 App. Div. 168) that there was no such rank ás that of roundsman in that; city, separate and distinct from the position of patrolman, recognized by law. ' The first appearance of the office of roundsman in the city of New York which I can discover in the statutes was in section 276 of the Greater New York charter. In section 299 the-salary of roundsman was made $1,500, and the salary of patrolman. $1,400.

Under the Greater New York charter the office of roundsman, has a permanent tenure and a statutory salary, and as a consequence there is a termination of a patrolman’s office as patrolman when he becomes a roundsman. It is evident that this constitutes a promotion, both technically and actually.

Section .288 provides that “ promotions of officers and members-of the police force shall be made by the police board, as provided in section three hundred and four of this act, on grounds of seniority,, meritorious police service and superior capacity.”

Section 304 provides for civil service examination, for the arrangement of the police force in .classes, the filling of all offices by selection from among those graded highest as the result of said competitive examinations,” and that promotions from the lower grades to-the higher grades shall be- on the basis of seniority, of merit and of excellence as shown by competitive examination,” and requires the-transmission by the police board to the civil service commission of the record of each candidate for promotion.

This constitutes a plain and unambiguous declaration that patrolman and roundsman hold separate grades of office and that promotion from one grade to the other shall be the result ■ of competitive •examination under the Civil Service Law.

The White Law (Laws of 1899, chap. 370) also redeclared the necessity of such competitive examination in all cases of promotion. (See §§ 7, 13, 15.)

It is conceded in the brief of the relator that his assignment to •duty as roundsman was a temporary one. . Then he seems to be impaled on the horns of a dilemma, either of which is fatal to his contention. If his assignment was temporary, it did not constitute a promotion to the office of roundsman and thus carry with it the right to increased salary ; and, on the other hand, if it was a promotion, it was contrary to the civil service statute of 1899, which took effect two months before the relator’s appointment by the chief of police. Any other decision would open the door to an evasion of the Civil Service Law.

The decision of this court in People ex rel. Schelpp v. Knox (48 App. Div. 477) is not inconsistent with this opinion. We held that the police board might promote an officer for gallant conduct in the police service in saving at the risk of his life six persons from a burning building for the reason that “no examination can be devised which will present the conditions to furnish a test of the comparative gallantry or heroism of policemen or firemen engaged in the attempt to rescue persons from a burning building.”

From these facts it follows that the defendant cannot certify by authority of law that the relator was appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law, as required by section 10 of the act.

For these reasons the order should be. affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  