
    The People ex rel. James Edwards, Relator, v. William F. Baker, R. Ross Appleton and Alfred J. Tulley, constituting the Municipal Civil Service Commission of The City of New York, Respondents.
    (Supreme Court, Kings Special Term,
    January, 1906.)
    Municipal Corporations—Police department — Probationary term.
    Greater Mew York Charter, § 288.
    The municipal civil service commission of the city of Mew York, in rating a patrolman for promotion to roundsman, after a competitive examination, may not consider a thirty days? fine imposed upon him for a violation of the rules of the department, while serving his probationary term of six months upon entering the service; and where, but for such consideration, his rating would have placed him three hundred numbers nearer the head of the eligible list, he is entitled to a peremptory mandamus requiring said commission to revise his rating “ as to meritorious police service” (Greater Mew York Charter, § 288), by disregarding such fine, and to correct his rating on the eligible list.
    Morrow for a peremptory writ of mandamus requiring the respondents to revise the rating of the relator as to meritorious police service by disregarding all fines imposed during relator’s probationary term of service, and to correct relator’s rating on the eligible list for promotion to roundsman accordingly.
    The relator, as a result of a competitive examination, was, on October 19, 1896, assigned to duty on the police force in the city of Brooklyn for a probationary term of six months. While serving under such probationary appointment, he was tried for a violation of the rules of the police department, convicted and fined thirty days’ pay. After serving the full probationary period, relator was, on April 19, 1897, regularly appointed a member of the police force of the city of Brooklyn, with the rank and grade of patrolman. Thereafter, and pursuant to the provisions of the Greater ¡New York Charter (Laws of 1897, chap. 378), relator was continued as a member of the police force of the city of ¡New York, with the same rank and grade.
    
      On Hay 5, 1904, relator, as a result of a competitive examination for promotion to roundsman, was notified by the municipal civil service commission that his name had been placed on the eligible list for such promotion and that he had been given a rating of eighty and eighty-four one hundredths per cent.
    In arriving at this rating, the municipal civil service commission deducted seven and one-half per cent from relator’s rating on meritorious police service, because of the thirty days’ fine imposed while relator was serving his probationary term. But for this deduction, relator’s rating on the eligible list would have been eighty-three and sixty-four one hundredths per cent, thus placing him some three hundred numbers nearer the head of said list.
    On May 18, 1904, and again on August 10, 1904, relator appealed in writing to the municipal civil service commission, protesting that no part of his record while serving as a probationary appointee should be considered, and asking for a re-rating.
    On October 20, 1904, the municipal civil service commission refused to change relator’s rating, but did not notify relator of this action until January 10, 1905. Meanwhile, relator had appealed personally to president Coler of the municipal civil service commission, who advised him to apply to the police commissioner for a corrected record. The police commissioner, thereupon, requested the corporation counsel of the city of New York for his opinion as to whether a fine, imposed upon a probationary officer, should be considered against him on his application for promotion, and the corporation counsel handed down an opinion favorable to the contention of the relator.
    The opinion of the corporation counsel, together with an amended record of relator, was, on April 10, 1905, ¡u¡l< mitted by the police commissioner to the municipal er il service commission, together with a communication in o riting requesting a re-rating of relator.
    On April' 19; 1905, the municipal civil service commission, after due consideration, refused to grant the police commissioner’s request for a re-rating. However, no notice of this action came to the knowledge of the relator until after September 1, 1905. This proceeding was commenced October 18, 1905.
    This motion was brought on before Justice Maddox, at a Special Term of the Supreme Court, Kings County, for November, 1905.
    On the motion two questions were presented for the determination of the court, namely:
    
      First. Should the record of a member of the police force, while serving as a probationary appointee, be considered by the municipal civil service commission on the examination for promotion ?
    
      Second. Was the relator guilty of laches ?
    Robert H. Wilson, for relator.
    John J. Delany, Corporation Counsel (E. H. Wilson, of Counsel), for respondents.
   Maddox, J.

The respondents’ predecessors in office considered the probationary record of the relator improperly included by the police commissioner in the police record of relator, submitted to the civil service commission, and, in that, a wrong was done to relator. The statutes define the duties of the civil service commission and promotion in the police department shall be made on the basis of seniority, meritorious police service and superior capacity, as shown by competitive examination.” Charter § 288.

In considering the probationary record, the commission exceeded the statutory authority given. That was not a judicial act and cannot be so excused.

Relator’s delay is fully explained and he is not to be charged with laches. In communicating with the police commissioner and the civil service commission, he was endeavoring to bring about a correction of the wrong done him.

No reason is shown why the commission should not have acted and the motion is granted.

Motion granted.  