
    The People of the State of New York ex rel. Thomas S. Baldwin, Appellant, v. Bernard J. York and Others, as Police Commissioners of the City of New York, Respondents.
    
      Police force of Neto York city — right of the police commissioners to fix the rank of the police transferred to it from the towns and milages incorporated into the Greater New York.
    
    Section 360 of the Greater New York charter (Laws of 1897, chap. 378), providing that the captain and each sergeant, roundsman and .patrolman of the police force of the county of Richmond, or of the towns and villages thereof, should be members of the police force of the consolidated city, is qualified by section 381 of the charter, vesting in the board of police of the city authority and control over the members of the police force transferred thereto. “ and especially, ■except as otherwise provided by this chapter, to fix and assign the rank, title, duties, powers and place of service of said transferred members. Until by said, board otherwise provided, the rank, title, duties, powers and place of service of said transferred members shall be the same as they were in the police force to which they belonged" before this act took effect; ” and a captain, of the police force of the village of Richmond Hill at the time when that village was consolidated in the city of New York, may properly be assigned to the rank of patrolman on the police force of the consolidated city.
    Appeal by the relator, Thomas S. Baldwin, from an order of the Supreme Court, made at the Queens County Special Term, and entered in the office of the clerk of the county of Queens on the 18th day of May, 1899, denying his motion for a peremptory writ of mandamus requiring Bernard J. York.and others, as police commissioners of the city of New York, to assign him to duty in the rank and grade of captain of police upon the police force of New York city.
    
      F. H. Van Vechten, for the appellant.
    
      Wm. J. Carr, for the respondents.
   Hatch, J.:

The relator was a captain of the police force of the village of Richmond Hill at the time of the consolidation of that locality into the greater city of New York. After such consolidation took effect, the relator was not assigned to duty upon the police force of the consolidated city, and thereupon made application for and obtained an order directing the commissioners of police of the consolidated city to assign him to duty upon such force. The Commissioners ■ complied with such order andN appointed relator a patrolman; he entered upon his duties as such,, and has since remained' in service as a patrolman thereon. By this application the relator seeks to amend the former order hy requiring, the commissioners of police to assign him to duty.as a captain of police upon such force, that being the grade which he claimed, to have held prior to consolidation ; and he now claims that under the provisions of the Greater New York charter it became the duty of the police commissioners to grade and appoint him in the rank of captain. Whether the relator should he held to have waived any -right which he possessed by reason of his former application and the order entered thereunder, or that by reason of Ms acceptance of service as patrolman he is estopped from questioning: the right and power of the commissioners so to appoint him, is a matter which.is presently unimportant..

The relator fails to make a case showing that he is.entitled under any provision.of law to be assigned to duty with the grade of captain, upon the police force of the greater city of New York. By virtue of section 280 of the Greater New York charter (Laws of 1897, chap. 378) the captain and each sergeant, roundsman and patrolman of the police force, of the comity of Richmond, or of the towns and villages thereof, were constituted members of the police force as specified in section 276 of such charter. These sections and others effected the transfer of the relator and others to positions in - the police force of the greater city of New York, and,, if this were the only authority,, it is quite possible that they would be permanently transferred int-o .the respective grades in which they were found; but by section 281 authority is vested in the board of police to- have and exercise control and: authority over the members of the police force transferred thereto as oyer members of the force appointed thereto by said board, “ and especially, except as otherwise provided by this chapter, to fix and assign the rank, title, ■ duties, powers and place of service of said transferred members. Until by said board otherwise provided, the rank, title, duties, powers and place of service of said transferred members shall be the same as they were in the police force to which they belonged before, this act took effect.” ,

It is evident, from these provisions, that it was within the contemplation of the framers of the charter. that a condition would exist where the board of police commissioners' might not be able to assign the police force transferred in exact conformity with the grade which it held at the time when the consolidation took effect, and it was the evident purpose of the section to vest the power and authority of designating persons for a particular branch of such service as the necessities of the situation and the persons for whom provision was to be made required, and to this end they were given power to fix and assign the rank and place of service of the transferred members.

The last clause of the section places no limitation upon such power and authority. It simply provides that during the time .intermediate the transference and the assigning to rank and service of the persons transferred, they should continue to hold the same rank and grade as they'had held in the locality where they were found. It is, therefore, evident that section 281 is to be considered as qualifying section 280, and, as so qualified, there was no provision of law which commanded the board of police commissioners to assign the relator to the rank of captain in the police force of the consolidated city. •On the contrary, they .were vested with authority to thereafter fix his rank and assign him to the performance of duty in .the rank thus fixed. This the papers show has been done under the former order, and-the relator, therefore, has no grievance or cause of complaint. Nothing which appears in People ex rel. White v. York (35 App. Div. 300) conflicts with this view. The court was there speaking of a statute different in terms from the provisions of the present charter, and to which a different construction might be given. If it 'were otherwise, the language there used could not be held as controlling the condition with which we are presently confronted.

It follows that the order should be affirmed.

All concurred.

■Order affirmed, with ten dollars costs and disbursements.  