
    The People of the State of New York ex rel. Joseph E. Smith, Appellant, v. John J. Scannell, Fire Commissioner of the Fire Department of the City of New York, Respondent.
    
      Salaries of uniformed membersof the Brooklyn fire department, by whom fixed—effect thereon of the Greater New York charter.
    
    In December, 1897, the power to fix the salaries of uniformed members of the Brooklyn fire department was vested in the board of estimate and not in the fire commissioner.
    
      Semble, that in enacting section 740 of the Greater Hew York charter (Laws of 1897, chap. 378), relating to the compensation of members of the„fire department of the consolidated city, transferred from the fire departments of the several constituent municipalities, other than the former city of Hew York, it was the intention of the Legislature that a member of the Brooklyn fire department who at the time of his transfer was receiving a greater'salary than the corresponding officer in the former Hew York department, should have his salary reduced to the amount paid to such corresponding officer in the former Hew York department.
    Appeal by the relator, Joseph E. Smith, from a final 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 1st day of May, 1900, denying the relator’s application for a writ of mandamus.
    
      Francis A. McCloskey, for the appellant.
    
      William J. Carr [Luke D. Stapleton with him on the brief], for the respondent.
   Willard Bartlett, J.:

The earlier disposition of this appeal has been prevented, by the reargument which was ordered in the cases of Flynn v. City of New York (69 App. Div. 433) and Cassin v. City of New York (Id. 433).

The relator is a surgeon in the uniformed force of the fire department of the city of Hew York by virtue of a transfer thereto from his former status of a surgeon in the uniformed force of the fire department of the city of Brooklyn. As a member of -the uniformed force of the Brooklyn department he had been drawing a salary of $2,000. per year, but on the 20th day of December, 1897, just before the transfer to the Hew York department, the fire commissioner of the city of Brooklyn advanced his salary to $2,500 per year, the increase to take effect on the 15th day. of December, 1897. On the 1st day of January, 1898, by operation of law, the relator was transferred to the fire department of the city of Hew York, and his salary was .fixed -by the fire commissioner of the city of Hew York at $2,000 per annum.

It is contended in behalf of the appellant that this.reduction was unlawful, and that he was entitled, tinder section 740 of the Greater Hew York charter (Laws of 1897, chap. 378), to have his compensation fixed at $2,500, the amount which he was receiving from the city of Brooklyn when the fire departments were consolidated into one organization¿

Section 740 provides, among other' things, that the pay or compensation of any officers who when the charter took effect belonged to the uniformed force of either of the fire departments thereby consolidated into one department should be and remain fixed at the amount which they and each of them were severally receiving or entitled to receive from the respective municipal corporations in whose employ they were prior to the taking effect of the- act, provided, however,, that the salaries of all such officers in either of said fire departments other than the Hew York department, so consolidated into one department, shall be made equal to the salaries of corresponding officers in said Hew York department within three years from January first, eighteen hundred and ninety-eight, by equal annual additions; and provided further that if the difference in the pay received by such officers and the pay received by corresponding officers of the Hew York fire department as heretofore existing, is not more than fifty dollars, when this act takes effect, the pay shall be equalized at once.”

While this clause was evidently enacted on the assumption that the pay or compensation in Brooklyn would in each instance be lower than that in the former city of Hew York, if there was any difference, I am strongly inclined to think that it was the intent of the Legislature to equalize by reduction in cases where there might be.a difference in favor of officers in the Brooklyn uniformed force. Equality was the end in view, so that the persons exercising the same functions should after consolidation all receive compensation at the rates prescribed for the fire department in the former city of Hew York.

But, whether this view be correct or not, our conclusion here must be controlled by that which we reached in the Flynn and Oassin cases, to the effect that the power to fix the salaries of the uniformed members of the Brooklyn fire department belonged to the board of estimate, and not to the fire commissioner. Hence, the action of the Brooklyn fire commissioner in increasing the relator’s salary by the sum of $500, just before the consolidation of the two fire departments, was ineffectual, and the fire commissioner of the consolidated city of Hew York was justified in disregarding it.

The order appealed from should be affirmed.

All concurred, except Jenks, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  