
    The People ex rel. Cornelius S. Silvey, Relator, v. The Municipal Civil Service Commission of the City of New York, Respondent.
    (Supreme Court, New York Special Term,
    February, 1900.)
    1. Civil service — Effect of White Act on New York police and fire departments administration.
    The White Act (Laws of 1899, chap. 370, § 29) did not repeal those sections of the charter of the city of New York (Laws of 1897, chap. 378, §§ 292, 728), which relate to the administration of the police and fire departments, as neither section can be deemed an act, rule, or regulation, or classification for appointment or promotion in the civil service of the State or any civil division thereof.
    8. Same — Appointment of policemen and firemen as pilots.
    Where the appointing officers of the New York police and fire departments have duly “ furnished ” to the city civil service commission pay-rolls which comply with its rule .32, the fact that said officers have, under the authority of said sections, appointed persons, who appear on the pay-rolls as policemen and firemen, to be pilots on municipal steamers, affords no reason why the court should, at the instance of a third person, enjoin the said commission from' certifying the pay-rolls as to the payments to be made to the said policemen and firemen.
    Application for a peremptory writ of mandamus.
    George W. Dean, for relator.
    John Whalen, Corporation Counsel (Charles W. Ridgway, of counsel), for respondent.
   Fitzgerald, J.

This is an application for a peremptory writ of mandamus commanding the respondent “ to refuse certification of certain pay-rolls required by section 19 of the Civil Service Law as to payment of any moneys to James A. Gallagher and John McCarthy Mo. 3, as first grade firemen of Engine Company Mo. 57 of the fire department of the city of Mew York, as said persons are performing the duties of and acting as pilots on the municipal steamer ¡New Yorker, instead of the duties which they are classified and certified to on said pay-rolls,” and for a similar direction as to “payment of any moneys to Anderson ¡M¡. Stebbins and Taylor as policemen in the forty-second precinct of the police department of the city of ¡New York, as the said persons are performing the duties as pilots on the municipal steamer Patrol, instead of the duties which they are classified and certified to on said pay-rolls. And that the names of said four persons be removed from the official roster as required by Eule 32 of the Municipal Civil Service Eules.” It is conceded that the relator is not a member of the uniformed fofce of either the fire or police departments of the city of ¡New York. The president of the fire department and the chief of police, by their affidavits, submitted on behalf of the respondent, claim respectively to have each made the selections and assignments to duty of the persons complained of, by authority of law, the former (the president of the fire department) relying on section 728 of the charter of the Greater ¡New York, and the latter (the chief of police) on section 292 of the same statute. The relator contends that these provisions were changed by section 29 of chapter 370, Laws of 1899 (White Act), which repeals “all other acts or parts of acts, whether general, special or local, and all rules, regulations and classifications for appointment or promotion in the civil service of the State or any civil division thereof inconsistent with the provisions of said act.” ¡Neither section 728 nor section 292 of the charter can be deemed an act or rule or regulation or classification for appointment or promotion in the civil service of the State or any civil division thereof, but relate rather to the administration of the fire and police departments, and cannot be considered repealed by section 29, chapter 370, Laws of 1899. By rule 32 of the Municipal Civil Service Eules, the duty is devolved upon “ the appointing officers of any department, office, bureau or institution whose employees are paid direct from the treasury of the city ” to furnish “ the municipal commission with pay-rolls showing the names of the persons to be paid, residence, title of position held or kind of service performed by each person, the rate and amount of compensation to which he is entitled and the period for which he is paid, and to certify that the persons named therein are employed solely in the performance of the appropriate duties of the positions and employments indicated, and have not been assigned to perform duties appertaining to any other title.’.’ H pursuant to this0 section the appointing officers of the fire and police departments have respectively had properly furnished to respondent the names of the persons above mentioned, respondent is without power to interfere. If the before-mentioned appointing officers have disobeyed the provisions of the rule (32), then the proceeding to remedy the wrong should be directed against them, and not against the municipal civil service commission. While a peremptory writ of mandamus is aslced for, the relief demanded is rather in its nature injunctive, but as there was no objection interposed by the respondent to the form of the application I deemed it better to consider the merits.

Motion denied.  