
    In the Matter of the Application of Matthew J. McGrath, Respondent, for a Peremptory Writ of Mandamus, v. Arthur Woods, Police Commissioner of the City of New York, Appellant.
    First Department,
    June 16, 1916.
    Municipal corporations — reinstatement of police officer, city of New York — charter construed—removal for conduct unbecoming an officer.
    Where a member of the police force in the city of New York was removed for conduct unbecoming an officer at a time when the statute prohibited his reinstatement if removed for such cause, the act of a police commissioner in reinstating him and promoting him to the position of sergeant was void.
    Hence, when the statute removed the prohibition against such reinstate«ment, the officer cannot be reinstated with the rank of sergeant, but only with the rank that he held at the time of his dismissal, it appearing that he never acted as a sergeant so as to hold such position de facto.
    
    Appeal by Arthur Woods, as police commissioner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1916, granting relator’s motion for a peremptory writ of mandamus.
    
      
      John F. O'Brien, for the appellant.
    
      Frederick 8. Lyke, for the respondent.
   Page, J.:

On April 28, 1911, the relator was removed from the police force by Commissioner Cropsey, who had found the relator guilty, after a trial, of conduct unbecoming an officer. On July 1,1911, Commissioner Waldo, who had succeeded Cropsey, granted the relator a rehearing, and assumed to reinstate the relator to his position as a patrolman. This act of Commissioner Waldo was in direct conflict with section 1543a of the Greater New York charter (Laws of 1901, chap. 466, as added by Laws of 1907, chap. 723), as it existed in July, 1911. On July 12, 1912, Commissioner Waldo granted relator an indefinite leave of absence without pay, and while he was still on leave of absence, the commissioner appointed him to the position of sergeant. He never acted as sergeant. In 1915 the Legislature amended section 1543a of the charter (Laws of 1915, chap. 79) removing therefrom the prohibition against the reinstatement of officers removed for conduct unbecoming an officer. The relator applied to Commissioner Wood for reinstatement, and on September 8, 1915, was reinstated as a patrolman. He brings this proceeding to obtain his reinstatement as a sez’geant. The Special Term has granted a peremptory writ of mandamus directing such reinstatement.

The act of Commissioner Waldo in restoring the relator was contrary to the express provision of law, and was void. The relator was not a member of the force when Commissioner Waldo assumed to appoint him a sergeant, and as he never acted as szzch he never became a sergeant, de facto or de jure. Commissioner Wood, therefore, properly restored him to the grade of patrolman, the position he held when removed.

The order will be reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.

Clarke, P. J., Laughlin, Dowling and Davis, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.  