
    The People ex rel. Charles L. Albertson, Relator, v. William McAdoo, Police Commissioner, Etc., Defendant.
    (Supreme Court, New York Special Term,
    March, 1905.)
    New York city — Police inspector — Appointment—‘Mistake as to vacancy.
    The police commissioner of the city of New York has no power to appoint more than fifteen inspectors of police, and when it appears that he has done so, under the mistaken notion that vacan- ' cies existed, it is his duty, without a trial or hearing, to compel them to resume the duties of the position from which he mistakenly and unsuccessfully endeavored to promote them.
    Application to restore the relator to the position of inspector in the police department of the city of New York.
    
      Frank F. Davis, for relator.
    John J. Delany, corporation counsel (Terence Farley, of counsel), for defendant.
   Leventritt, J.

This is an application to restore the relator to the position of inspector in the police department. The material facts stand practically undisputed. So far as there is conflict the averments of the answering affidavits must be taken as true, as the application is one for a peremptory writ. People ex rel. Pumpyansky v. Keating, 168 N. Y. 390. On June 23, 1903, the then police commissioner assumed to appoint the relator and two others to inspector-ships in the police department, acting under the belief that vacancies existed. The charter provides for fifteen inspectors. § 276. On February 1, 1903, there were twelve inspectors. Various appointments were made and retirements occurred during February and March. On March sixth the number was full. On the fifteenth of May there was a further vacancy by the retirement -of another inspector. The then police commissioner, however, assumed that three vacancies existed by virtue of the dismissal after trials had of Inspector Grant on February fourth and of Inspector Cross on May sixth. Three appointments were thereupon made, that of the relator and two others, one-of whom by virtue of being a veteran was entitled to preference. The relator entered upon the performance of his duties and became" a de facto inspector. Thereafter the dismissed inspectors, having taken their cases to court, the Appellate Division, prior to December 22, 1904-, annulled the proceedings dismissing them and directed their reinstatement. On the last-mentioned date an order was made by the police commissioner by which the relator and another were “ directed to resume the duties of captain of police respectively, out of which the police commissioner * * * illegally and unsuccessfully endeavored to promote them.” No charges were preferred against the relator and the removal was solely on the ground of a lack of power to promote. On these facts it is difficult to see what standing the relator has to maintain this proceeding. The law allows but fifteen inspectors; neither the police commissioner nor the courts can, by construction, increase this number. When the relator was designated inspector there was but one vacancy, to which the veteran was entitled. Inspectors Cross and Grant were still de jure inspectors, entitled as a matter of law to the salary of the office as an incident to it, unless it had been paid to a de facto incumbent, and entitled even then to maintain an action to recover its amount against the de facto officer. Stemmler v. Mayor, 179 N. Y. 473. In other words, they never ceased to be inspectors. When the commissioner assumed to appoint the relator he had no authority to do so, because there were no vacancies: the promotion was illegal. The relator, therefore, never held ” the position within the meaning of the Civil Service Law requiring charges and a. hearing before removal and reduction. The manner in which the police commissioner proceeded seems the proper practice. People ex rel. Short v. Fire Commissioners, 47 Hun, 528, affd., 114 N. Y. 67. The motion must be denied.

Motion denied.  