
    The People of the State of New York ex rel. Daniel F. Donoher, Respondent, v. Francis V. Greene, as Police Commissioner of the City of New York, Appellant.
    New York city patrolman—when assigned to perform duty intheheadquairters squad of the borough of Brooklyn or Manhattan he becomes a detective sergeant — a mandamus will issue to compel the commissioner to grade and recognize him as such —Tie is not limited to a suit for salary or to an action of quo warranto—effect of his acceptance of a salary as patrolman.
    
    Section 290 of the revised charter of the city of New York (Laws of 1001, chap. 466), which provides that patrolmen assigned to perform duty in the headquarters squad “shall be known as detective sergeants, shall act as such in said bureau and shall hold the same rank and shall be eligible for promotion in the entire police force in the city under the same rules and conditions applicable to the promotion of all other sergeants of police in said city, and shall not be reduced in rank or salary except in the manner provided by law for sergeants and other officers of the police force,” applies to assignments of patrolmen to perform duty in the headquarters squad of the borough of Brooklyn as well as to assignments of patrolmen to perform duty in the headquarters squad in the borough of Manhattan.
    A patrolman who was assigned to duty in the headquarters squad of the borough of Brooklyn on the 15th day of July, 1901, and who has since been continuously attached to such squad and is performing detective duty therein, is entitled to a writ of mandamus to compel the police commissioner of the city, of New York to grade and recognize him as a detective sergeant.
    The fact that the patrolman has, since January, 1902, when the revised charter went into effect, accepted and receipted for his salary as patrolman, will not prevent him from successfully maintaining the mandamus proceeding, although it may estop him from recovering any further sum for his services during that period.
    
      The patrolman, being entitled not only to receive the pay attached to the office of detective sergeant, but also’ to be graded and recognized as such, is not restricted to an action against the city to recover salary as a detective sergeant, nor, there being no controversy between rival claimants of the same office, is he obliged to bring an action of quo warranto.
    Ingraham and McLaughlin, JJ., dissented.
    Appeal by the defendant, Francis Y. Greene, as police commissioner of the city of New York, 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 3d day of June, 1903, granting the relator’s application for a peremptory writ, of mandamus.
    
      Terence Farley, for the appellant.
    
      Bernard J. York, for the respondent.
   Hatch, J.:

The relator, Daniel F. Donoher, is a member of the police force of the city of New York, and has been for a number of years past. On the 15th day of July, 1901, he was assigned to the “ Brooklyn Borough Headquarters Squad” for the performance of detective duty, and has been continuously attached to said squad from that time to the time of filing his petition, which bears date the 7th day May, 1903, and during this period-.he was required to and has performed detective duty therein. On the 28th day of April, 1903, the relator made demand upon the defendant, the police commissioner, that he be recognized as a detective sergeant on the police force of the police department, and be accorded all the rights, privileges and emoluments belonging to such rank and grade, which demand the police commissioner denied, and upon such refusal this proceeding was instituted, which asks for a peremptory writ of mandamus commanding the defendant herein to forthwith grade and recognize the relator as a detective sergeant on- the police force of the police department of the city of New York, and to accord to him all the rights and privileges thereunto appertaining. The court made an order requiring the defendant to grade and recognize the relator as a detective sergeant of police of the police department of the city of New York, and forthwith to grant him all the rights, privileges and emoluments belonging to the rank of a detective sergeant of police in. the police department of the city of New York. From that order this appeal is taken.

The contention that the provisions of section 290 of the revised charter of the city of New York (Laws of 1901, chap. 466) apply only to the headquarters squad in the borough of Manhattan cannot be sustained, This court, in People ex rel. Finn v. Greene (87 App. Div. 346), held that the provisions of this section of the revised charter apply equally to assignments of patrolmen to perform duty in the headquarters squad in the borough of Brooklyn as to an assignment to the headquarters squadin the borough of Manhattan. Such assignment carried with it and entitled the relator to receive all of the benefits for which the act provided. In many essential matters this case is like the Finn case. It differs from it, however, in a single controlling feature. Therein the relator was detached from the Brooklyn borough headquarters squad on the 25th day of April, 1902, and brought his proceeding on the 8th day of May, 1903, after he had ceased to perform duty ás a detective sergeant, and this court held that he had been guilty of such laches in instituting his proceeding for reinstatement as defeated the application. In the present case the averment of’ the petition is that the relator was assigned to duty as a detective sergeant on the 15th day of July, 1901, has been continuously attached to such squad since that date, and is now performing detective duty in such squad. This averment is not put in issue by the return to the writ. Therein the date of the assignment is admitted, and connected with it is the further statement that the relator’s “ assignment was changed from that office to duty in connection with the Bertillon system in the Borough of Brooklyn.” We understand from the language of the return that the duty which the relator is performing in connection with the Bertillon system (so called) is within the line of duties assigned to and performed by detective sergeants connected with the headquarters squad. It is a mere detail in the performance of duty as a detective sergeant; consequently the return does not put in issue the facts as averred in' the petition. It necessarily follows upon this state of facts that the question of laches is not involved in the present proceeding. The relator cannot be held guilty of laches in failing to move for a reinstatement to his assignment as detective sergeant because he has not been removed therefrom and is now acting in such position. On April 28,1903, he demanded of the defendant -that he be graded and recognized as a detective sergeant, and this not being complied with, he instituted this proceeding within ten days thereafter. There is no basis, therefore, for saying that the relator has been guilty of any laches in seeking to enforce his rights. Such question is not presented in this proceeding.

It is. said-, however, that he is now estopped from "claiming that he isa detective sergeant for the reason that since January 1, 1902, when the revised charter of the city of Kew York went into effect, be has received, accepted and receipted for his salary as a patrolman, and by reason of such acts has waived any rights of which he was possessed. This is certainly a novel claim upon which to rest' an estoppel. If the relator by his assignment secured the status of .a detective sergeant in the police force of the city of Kew York, and he still remains therein performing duties as such, it is clear that he is entitled to the pay attached to such, grade. The fact' that, prior to the time when he made his demand to be recognized and graded as such and that he be given the emoluments inuring to such position, he had not received them, cannot be held as operating to create an estoppel-which forever deprived him of his right thereto. It may be that by accepting, receiving and receipting for his pay prior to that time he has estopped himself from demanding that he be paid a greater sum for that period of service, but with that question we are not now concerned. The problem we are now dealing with is, what is his present right and to what he is now entitled ? And the fact that heretofore he has taken a less sum than that to which his position entitled him cannot in the nature of things affect such question. That relates to the past. We are now only concerned with the future, and no matter fdr what reason he has hitherto failed to receive that to which he is entitled does not estop or bar him in any way from asserting his present right.

It is said, however, that if he have' & remedy, it is not by mandamus, but by action quo warranto. In support of this claim the learned corporation counsel relies upon People ex rel. McLaughlin v. Police Comrs. (174 N. Y. 450). That case is without application to the present. Therein the board of police commissioners of the city of Yonkers placed a captain of police upon the retired list, passed a resolution that he be relieved from duty, retired him from the police department of the city of Yonkers, and placed him upon the roll of the police pension fund at an annual pension for life. The retired officer acquiesced for over three months in his retirement, received and receipted for the balance of the pay which was due him, and also received ■ a portion of the pension money. After the retirement the police commissioners appointed another person to the office held by the relator, and also filled certain other offices by promotions in the respective grades up to that of captain; Subsequently the relator instituted' proceedings by mandamus to •compel'the commissioners to reinstate him in liis position, and upon Application the then incumbent of the office of captain of police was permitted to intervene in the proceeding, and thus was presented a case where two persons, one out and the other in, claimed title to the office. The Court of Appeals had little difficulty in producing an overwhelming array of authority, showing • that under .such circumstances quo warranto, and. not mandamus, was the proper remedy. Such is the unbroken line of decisions bearing upon this question. They are without application here for the reason that the relator in the present case is the sole occupant of the office or position to which he has been assigned. No other person lays claim to it. He is the actual present incumbent, performing its duties, and there is no question of title to an office to try, save such question as arises upon a construction of the provisions •of the revised charter which determine the relator’s right. The facts are admitted, and there is no struggle between conflicting claimants to a particular office. It is evident, therefore, that the discussion in the McLaughlin case has no application to the present proceeding.

It is further said, however, that plaintiff’s remedy is not by mandamus, but by an action against the city to recover his salary. So far as this question is concerned, we might easily dispose of it by saying that no such question was raised below by the-learned corporation counsel nor upon the oral- argument in this court or in the briefs submitted with the case. It is-raised here for - the first time by independent suggestion; but however raised, we are of opinion that it is not available to defeat the present application. In order to entitle the relator to a mandamus he. is required to show-himself legally and equitably entitled to some right properly the subject of the writ; that it is legally demandable from the person to whom the writ is directed and also that such person has power to perform the duty required. (People ex rel. Stevens v. Hayt, 66 N. Y. 606; People ex rel. Perkins v. Hawkins, 46 id. 9 ; People ex rel. Faile v. Ferris, 16 Hun, 219.) There is no doubt but that the defendant is the proper person against whom to direct the writ, and that whatever right the relator .has is legally demandable from him, and that he or his successor in office may perform the act. required. By .the decisions of the Court of Appeals in Matter of Sugden v. Partridge (174 N. Y. 87) and Matter of Fay v. Partridge (Id. 526) the status of the relator'would seem to have been authoritatively determined, and as he was' in office on January 1, 1902, and has' continued to remain therein down to the present time, he is by virtue of the statute and of the authorities construing it entitled to rank as a detective sergeant upon the police force of the city of New York, to be graded and recognized as stich, and to receive the emoluments attached .thereto. The relator, therefore, shows himself legally entitled to a right which may properly be enforced by writ of mandamus. His right is not alone to receive the pay attached to the office, but also to be graded and recognized as a detective sergeant upon the police force. The language of section 290 of the revised charter is that such persons situated as is. the relator “shall be known as detective sergeants, shall act as such in said bureau and shall hold the same rank and shall be eligible for promotion in the entire police force in the city under the same rules and conditions applicable to the promotion of all other sergeants of police in said city, and shall not be reduced in rank or salary except in the manner provided by law for sergeants and- other officers of the police force.” So that his right is not only to have his salary, but to have title and grade as a detective sergeant. It is essential also to the perfect security and protection of his rights that his status upon the police force be settled in order that he may be better able to enforce his legal rights to the compensation attached to the office and in establishment of his right and title thereto. His status does not rest upon any disputed question of fact, but solely upon a question of law, and as his rights have been already settled by. the provisions of. the statute and authoritative adjudications thereon, he is not only legally but equitably entitled to have such status denominated by name and recognized by his superiors in office and others. Under such circumstances mandamus is evidently the proper writ to invoke in establishment of the right.

In McCullough v. Mayor, etc., of Brooklyn (23 Wend. 458) it was said by Mr. Justice Bronson : “ Although as a general rule a mandamus will not lie where the party has another remedy, it is not universally true in relation to corporations and ministerial officers. Notwithstanding they may be liable in an action on the case for a neglect of duty, they may be compelled by mandamus to exercise their functions according to law.” And this doctrine: has received uniform approval. (People v. Mead, 24 N. Y. 114; People ex rel. Ryan v. Green, 58 id. 295.) In the. latter case the court said, speaking through Judge Folger : Where there is a remedy by action an application for a mandamus will be denied ; with the limitation that an action against a public officer for a neglect to perform his duty will not be held to be such a remedy by action as will prevent the allowance of a mandamus.” To the same effect are People v. Supervisors of Chenango Co. (11 N. Y. 563); Buck v. City of Lockport (6 Lans. 251); Spell. Ext. Rel. (§ 1572 et seq.).

It is manifest that it was incumbent upon defendant to properly grade and recognize the status of the relator when demand was made upon him so to do, and' as he has failed in so doing and the relator has the legal right to have such act performed, it is clear, within the authorities cited, that a writ of mandamus will issue to compel its performance when that is denied.

It follows that the order granting the writ was correct. It should, therefore, be affirmed, with costs.

O’Brien, J., concurred; Laughlin, J., concurred in result; Ingraham and McLaughlin, JJ., dissented.

Order affirmed, with costs.  