
    The People of the State of New York ex rel. Peter Short, App’lt, v. The Board of Fire Commissioners of the City of New York, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 26, 1889.)
    
    New York' (city of) — Fire department — Promotion made in good-FAITH TO FILL SUPPOSED VACANCY—CONSOLIDATION ACT, § 440.
    The relator brought this proceeding to re iew the action of the defendant in transferring him from the position of chief of battalion to that of foreman. The resolution promoting him to the former position was adopted in good faith, upon the supposition that there was a vacancy-caused by the removal of one McCabe, and the consequent promotion off one Reilly. The proceedings removing McCabe were subsequently declared void, and the relator was transferred back to his former rank. He-now contends that the board had no power to reduce his rank, and that his; appointment as chief was in effect the creation of a new office. Held, that the attempted promotion by resolution was to fill a supposed vacancy, which did not in fact exist; that no new office was created, and that the-proceedings of the board were regular and proper and not in conflict with the provisions-of section 440 of the consolidation act of 1882.
    Appeal from an order of the supreme court, general term, first department, affirming the proceedings of the-board of fire commissioners of New York city.
    
      Edward E. McCall, for app’lt; William L. Findley, for resp’t.
    
      
       Affirming 15 N. Y. State Rep., 119.
    
   Haight, J.

—The relator brought certiorari to review the ■action of the respondent in transferring him from duty as chief of battalion in the fire department to that of foreman. It appears from the return of the respondent that in July, 1886, one John McCabe held the position of second assistant ■chief of the department; that the board of fire commissioners adopted a resolution removing and discharging him from the position, on account of incapacity and incompetency; and thereafter, and on the 4th of August, 1886, the board, in good faith, believing that the position of second assistant chief of department was then vacant, passed a resolution promoting Francis J. Reilly from the position of chief of battalion to that of second assistant chief of department, and thereupon, and at the same time in good faith supposing the position of chief of battalion had been made vacant by the promotion of Reilly, passed another resolution promoting the relator from foreman to that of chief of battalion. Subsequently, McCabe procured a writ of certiorari in the supreme court to review thp proceedings of the board in relation to his removal from office, ahd in that proceeding it was adjudged that the proceedings of the respondent were irregular and void, and that McCabe be reinstated in his office. Thereupon he was so reinstated, and Reilly, who had been promoted to his place, was transferred back to his former position, and the relator, who had been promoted to Reilly’s place, was transferred back to his former rank.

It is contended on the part of the appellant that the board of fire commissioners had no power to thus reduce the rank of the relator; that his appointment to chief of battalion was, in effect, the creation of a new office, and that it was not to fill a vacancy. It is true, that the resolution of the board of fire commissioners appointing him chief of batalion is silent upon the question as to whether it was to fill a vacancy; but the return of the board is explicit upon the point, and states that the resolution or promotion was made in good faith, upon the supposition that there was a vacancy caused by the promotion of Reilly, and that Reilly’s promotion was also made upon the supposition that there was a "vacancy caused by the removal of McCabe. The return of the board must be taken as true. It follows that the attempted promotion by the resolution referred to was to fill :a supposed vacancy, which did not in fact exist.

The argument to the effect that the resolution created a new office for the relator is not founded upon any fact. An inference to that effect is attempted to be drawn from the resolution appointing him chief of battalion, but this resolution must be construed in connection with the facts appearing upon the return, and when so construed, it distinctly appears that no new office was created or intended.

The court below was of the opinion that the relator had no just cause of complaint, and that the proceedings of the hoard were regular and proper, and not in conflict with the provisions of section 440 of the New York City Consolidation Act of .1882. This opinion is in accord with our view.. The order should be affirmed, with costs.

All concur.  