
    (63 App. Div. 273.)
    STONE v. NEW YORK MUNICIPAL CIVIL SERVICE COMMISSION OF CITY OF NEW YORK et al.
    (Supreme Court, Appellate Division, First Department.
    July 9, 1901.)
    1. Municipal Corporations—Police—Special Duty.
    Consolidation Act (Laws 1S82, c. 410) § 296, as amended by Laws 1895,. c. 567, providing that the fitness of the men detailed by the police department to the sanitary squad, for the enforcement of the provisions-of the Sanitary Code and the acts relating to tenement and lodging' houses, under direction of the hoard of health, should be ascertained by a special examination, conducted by the board of civil commissioners, was repealed by Greater New York Charter, '§§ 312, 1324 (Laws 1897, c. 378), which substantially re-enact Consolidation Act, § 296, and provide that the fitness of the men detailed to the sanitary squad shall be determined by the board of police.
    2. Same—Irregular Assignment—Right to Salary.
    The fact that the assignment of officers by the police department to special duty in the sanitary squad, under direction of the board of health, is irregular, in that their fitness was not ascertained in the manner required by statute, will not justify the municipal civil service commission in refusing to certify the pay rolls of the men so irregularly assigned,, since they are entitled to their salaries as members of the police force,, and not because they are detailed to the service of the hoard of health.
    Appeal from special term.
    Action by Israel Stone against the New York Municipal Civil Service Commission of the city of New York and others. From an order denying plaintiffs motion for an injunction pendente lite and permission to file a bond therein nunc pro tunc, he appeals. Affirmed.
    The following is the opinion of SCOTT, J., delivered at special term:
    This is a taxpayer’s action, seeking to restrain the New York municipal civil service commission from certifying the pay roll of the officers and men now detailed by the police department to what is known as the sanitary squad, for the enforcement, under the direction of the hoard of health, of the provisions of the Sanitary Code and the acts relating to tenement and lodging houses. The question sought to be raised is whether or not the fitness of the-men so detailed must be ascertained by special examination by the civil service board, as provided by section 296 of the consolidation act (Laws 1882. c. 410), as amended by chapter 567 of the Laws of 1895. The defendants contend, and I think successfully, that that section must be deemed to have-been repealed, because the subject-matter thereof is revised and included in sections 312 and 1324 of the Greater New York charter (Laws 1897, c. 378), which substantially re-enact section 296 of the consolidation act, as amended by the act of 1895, with such changes as to the number of men to be detailed for special duty as were rendered necessary" by the increased area of the present city of New York. The latter one of those sections provides that the men to he detailed shall be selected for their fitness for the special work iequired of them, but leaves the determination of that fitness to the hoard of police, instead of leaving it to he ascertained by a special examination by the board of civil service commissioners. It is not necessary to state at length the argument which leads to this conclusion, for even if the plaintiff’s contention were to be sustained, and it were to be held that a special examination is still necessary before a detail could lawfully be made, still the present motion could not prevail. The men the payment of whose salaries it is sought to prevent are entitled to those salaries, not because they are detailed to the service of the hoard of health, but because they are members of the police force of the city of New York. All the civil service commissioners have to ascertain before certifying their pay rolls is whether or not they have been properly appointed to the police force. If they have been properly appointed, they are entitled to be paid the salaries provided bylaw. Notwithstanding their detail, whether properly made or not, they stiff remain members of the police force, subject to police discipline, and paid out of moneys appropriated for the payment of salaries of the police force. They are bound to perform such duties as are assigned to them, and, if detailed to the sanitary or tenement house squad, they have no choice, except to perform the duties thus imposed upon them. Even if their assignment to special duty is irregular, that fact does not deprive them of their positions: as police officers, or of the right to receive their salaries. Motion denied, with §10 costs.
    Argued before VAN BRUNT, P. J., and PATTERSON, O’BRIEN INGRAHAM, and LAUGHLIN, JJ.
    S. E. Fairfield, for appellant.
    William B. Crowell, for respondents.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements^ on the opinion of the court below.  