
    James J. Meehan, Resp’t, v. The City of Brooklyn, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed February 26, 1891.)
    
    Municipal corporations—Police—Brooklyn.
    Under the revised charter of Brooklyn, construed in connection with chap. 348, Laws 1887, a policeman who has served one year is advanced to the second grade, and after two years service to the first grade, by virtue of the act itself, and by accepting the salary of a lower grade he waives no rights, the law being mandatory, and the increase not being dependent on the act of the commissioner.
    Appeal from judgment in favor of plaintiff.
    Action to recover a balance of salary alleged to be due to plaintiff as a patrolman.
    
      John A. Quintard, for resp’t; Almet F. Jenks, for app’lt.
   Clement, Ch. J.

The respondent was appointed a patrolman on the police force of this city on May 11, 1887. At that time the salary of a patrolman was fixed by § 4 of chap. 467, Laws of 1879. On May 17, 1887, chap. 348, Laws of 1887, was passed, which provided that on and after July 1,1887, the grade of patrolmen, in cities having a population of over 500,000 and not exceeding 800,000, should be as follows: All patrolmen who should have served three years and upwards should be members of the first grade; all patrolmen who should have served less than three years and more than one year should be members of the second grade, and all other patrolmen on the force should be members of the third grade, and all persons appointed as patrolmen after July 1st should become members of the third grade. The act further provides that “whenever any member of the third grade shall have done service therein for one year he shall be advanced to the second grade, and whenever any member of the second grade shall have done service therein for one year he shall be advanced to the first grade.” There is also a provision in the act that the annual compensation of the police force should be fixed by a majority of the board of estimate. Under chap. 626 of the Laws of 1886, commissioners were appointed to revise the special and local laws of the city of Brooklyn, but in making such revision the act reads that “ said commissioners shall not make any change in the meaning of existing laws, but shall seek to simplify and combine in a single act all existing statutes upon matters embraced in such special and local laws.” The commissioners of revision made their report, and the same was passed by the legislature, and such act is chap. 583 of the Laws of 1888.

Title XI of the act relates to the department of police and. excise, and § 5 of that title reads as follows : “ The grade of the members of the police force who are patrolmen shall be as follows: All such members who shall have served three years or upwards on such force as patrolmen shall be members of the first grade; all such members who have served on such force for less than three years, and more than one year, shall be members of the second grade; and all other members who are patrolmen on said force shall be members of the third grade; and all persons appointed patrolmen shall, on their appointment, become members of the third grade. Whenever any member of the third grade shall have done service therein for one year, he shall be advanced to the second grade; and whenever any member of the second grade shall have done service therein for one year, he shall be advanced to the first grade.’’

The plaintiff claims that he became a member of the second grade on July 1, 1888, and of the first grade on July 1, 1889. It is admitted that he was not paid as a member of the first grade until May 11, 1890. It is contended by the counsel for the city that the plaintiff did not become a member of the first grade until he had served three years. This action was brought to recover the excess of salary from July 1, 1889, to May 11, 1890, received by a policeman of the first grade over that paid to one of the second grade.

We have quoted at length from the different statutes, for the reason that in order to construe properly the revised charter, it is necessary to consider the statutes which were in force- at the time it was passed. People ex rel. Ulrich v. Bell, 4 N. Y. Supp., 869; 24 N. Y. State Rep., 114; affirmed by court of appeals January 27, 1891, without opinion, 35 id., 994. There is a clear rule of construction which, if followed, is decisive of this case; a mere change of the phraseology in the revision will not be construed as a change in the law. Davis v. Davis, 75 N. Y., 221; Taylor v. Delancy, 2 Cai. Cas., 143, 151. By the act of revision the commissioners were not permitted to make any change in the existing laws.

If the question before us was to be decided by the reading of the revised charter, it would be a difficult one to determine, for the act reads that all patrolmen who have served three years and upwards shall be members of the first grade, and also that whenever any member of the second grade shall have done service therein for one year, he shall be advanced to the first grade. The service on the force required in the one case is three years, and in the other two. When we turn back to chapter 348 of the Laws of 1887, which the revisers had in view when the new section was drawn, then their intention becomes clear and plain. All patrolmen on the force on July 1, 1887, were divided into three grades. Those who "had served three years and over were made patrolmen of the first grade.

Those who had served one year, and less than three, became partolmen of the second grade, and those who had served less than one year were made patrolmen of the third grade. Whenever a member of the third grade had served therein one year, he should be advanced to the second grade, and whenever any member of the second grade should have served in such grade one yeár, he should be advanced to the first, grade. • The revised charter when read by itself on this point is contradictory, and has two meanings, but when read in the light of the act which it superseded is easily understood.

To follow the revised charter literally would be difficult. Chap-' ter 467 of the Laws of 1879, before referred to, which fixed the salaries of patrolmen at $1000 per annum, is found in the revision at § 10 of title XI, and in § 5 of the same title we find the provision as to salaries of patrolmen copied from chapter 348 of the Laws of 1887. If both provisions are in force, we have two rates of salary fixed for patrolmen. If we turn to § 6 of title XIII, we find that the salary of a fireman is fixed at two different rates in the same section, which section is derived from § 5 of chapter 467, Laws of 1879, and from chapter 582, Laws of-1887. We refer to those facts, not to criticise the revised charter, but to show that in order to construe such charter it is necessary to look into prior acts.

Chapter 348 of the Laws of 1887 differs in only one particular, which we will refer to hereafter, from chapter 182 of the Laws of 1884, which relates to the police force of the city of New York, and does not at all differ from chapter 582 of the Laws of 1887, which relates to the fire department of the city of Brooklyn, and we understand that in the police department of New York city, and in-the fire department of this city, members are advanced to the first grade after two years service.' While such facts may not be conclusive on the-point involved in this case, yet they show the construction of similar law£ given by corporation counsels who are always vigilant to protect the rights of their respective cities, and who are learned in the law.

Chapter 348 of the Laws of 1887 differs from chapter 182 of the Laws of 1884 in this respect. In the law applicable to New York city, a policeman cannot be advanced until after examination and approval of the police commissioners. In Brooklyn, the law is mandatory, and after the lapse of the proper time the com-, missioner can exercise no discretion, and simply grades the patrolmen as to pay, and this difference seems to answer the point made by the appellant, that Meehan acquiesced by continuing in service in a-lower grade. ' We think that the law advanced him, and not the act of the police commissioner. By accepting the salary of the lower grade, the respondent waived no rights. Riley v. City of New York, 96 N. Y., 331, 339, and cases there cited.

The judgment appealed from must be affirmed, with costs.

Yah Wtck, J., concurs.  