
    The People of the State of New York ex rel. Edwin H. Fiske, Respondent, v. Arthur Woods, as Police Commissioner of the City of New York, John Purroy Mitchel and Others, Constituting and Comprising the Board of Estimate and Apportionment of the City of New York, Appellants.
    Second Department,
    June 2, 1916.
    Municipal corporations—police surgeon, city of Mew York—status of surgeon — charter construed — office not abolished by failure of municipal authorities to appropriate salary — police surgeon can be dismissed only on charges and after hearing — mandamus.
    The office of police surgeon in the city of New York is created by statute, which fixes the salary, with a term terminable only as specified by statute. Such surgeon has the rank of a captain of police detailed to act as inspector, and can only be removed from office on written charges and a hearing, as provided in section 300 of the charter.
    Hence, an incumbent of said office cannot be removed upon the ground that the office is abolished by reason of the failure of the board of estimate and apportionment and the board of aldermen to make an appropriation for his salary in the annual budget.
    The board of estimate and apportionment is under the statutory duty of providing the statutory salary for such officer, and when discharged on the ground aforesaid he will be reinstated by peremptory writ of mandamus.
    Appeal by the defendants, Arthur Woods, as police commissioner, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of May, 1916, granting relator’s motion for a peremptory writ of mandamus.
    
      William E. O. Mayer [Terence Farley, Elliot 8. Benedict and Lamar Hardy with him on the brief], for the appellants.
    
      Alfred J. Talley [Joseph A. McNamara with him on the brief], for the respondent.
   Caer, J.:

The relator, Fiske, was duly appointed to the office of police surgeon in the police force of the city of New York on August 3, 1911, and continued to serve in said office until December 31, 1915. He then received a notice in writing from the police commissioner of said city, which stated that “you are suspended without pay, to take effect 12 midnight, December 31st, 1915, no provision having been made in the budget for the year 1916 for your position as Police Surgeon, and your services being no]longer required.” It appears that the board of estimate and apportionment, in making up the annual budget for the year 1916,' and the board of aldermen, in confirming said budget, had made provision for the salaries of but twenty police surgeons, although at that time there were in fact twenty-four such officers. Section 1542 of the Greater New York charter (Laws of 1901, chap. 466) makes it the duty of all heads of departments of said city so to regulate the expenditures of their departments as not to exceed in any one year the amount appropriated by the board of estimate and apportionment for the expenditures for any purpose or object of the department. The situation confronting the police commissioner was, therefore, that four police surgeons then in office were unprovided for as to salaries for the year 1916. To meet this situation, he attempted to abolish the particular office then held by the relator. There is no question in this case as to the regularity of the relator’s appointment to office. The office of police surgeon is created by specific provision of statute. (Greater N. Y. Charter, § 276, as amd. by Laws of 1901, chap. 730; Laws of 1907, chap. 160, and Laws of 1912, chap. 449.) The salary of the office is fixed by statute at $3,500 per annum, and the rank of such officer in the police force of said city is declared to be “ the same rank as a captain of police detailed to act as inspector.” (Greater Y. Y. Charter, §299, as amd. by Laws of 1905, chap. 637, and Laws of 1907, chap. 160.) The relator, being a member of the police force, held a tenure of office the same as the other members thereof. By section 300 of the charter (as amd. by Laws of 1904, chap. 341) it was provided: “ But no member or members of the police force * * * shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before the police commissioner or one of his deputies.” Therefore, the tenure of the relator’s office was not at the pleasure of the appointing power, but practically during good behavior.

The relator’s office, being a public office created by statute, with a salary fixed by statute and with a term or tenure terminable in a mode specified by statute, was not subject to abolishment, either by the spontaneous act of the police commissioner or by the act of the board of estimate and apportionment in refusing to make provision therefor in the annual budget. (People ex rel. Satterlee v. Board of Police, 75 N. Y. 38.)

Section 1542 of the charter, as aforesaid, is but a re-enactment of practically similar provisions of earlier statutes applying to the city of Yew York, and has been the subject of numerous judicial decisions. In none of the cases cited by the appellants has it been held that the failure of the board of estimate and apportionment to make an appropriation for the salary of a statutory public officer when the salary and tenure of the office were declared by statute authorized the abolishment of the specific office without express grant of power from the Legislature. Yor does section 276 of the charter, as aforesaid, authorize the board of estimate and apportionment to change the composition of the police force of the city of Yew York except under the circumstances and in the manner therein provided. That section reads in part as follows: “Until otherwise provided by the board of estimate and apportionment, upon the recommendation of the mayor and the police commissioner, the police force in the police department created by this chapter, shall consist of the following members, to wit: * * * surgeons of police, not exceeding forty in number, one of whom shall be chief surgeon.”

It is alleged in the moving papers of the relator that at the time the board of estimate and apportionment took its action, as aforesaid, the police commissioner had not recommended to said board a reduction in the number of the police surgeons from twenty-four, as then existing, to twenty. This allegation is not denied. As the facts appear, undisputed, a situation did not exist in which the board of estimate and apportionment had power to reduce the composition of the police force as detailed in section 276 of the charter, as above quoted. While "the learned court at Special Term was of opinion that section 276 authorized only an increase in the composition of the police force under the defined circumstances, that question is not before us for decision upon the facts of this case. We are of opinion, therefore, that the police commissioner had no power to abolish the office of the relator — for such in fact was a permanent suspension without pay — and that the board of estimate and apportionment, under the facts of this case, was under the duty of providing for the statutory salary of the relator in the annual budget for 1916.

The order granting a peremptory writ of mandamus for the reinstatement of the relator in his office as police surgeon is affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas, Stapleton and Rioh, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  