In re Worth , 3 A.D. 443 ( 1896 )

Order affirmed, with ten dollars costs and disbursements, on the opinion of the Special Term.

All concurred.

The opinion of the Special Term was as follows:

Clement, J.:

The relator was a captain on the police force of the town of Flat-lands on January 1, 1896, the date when that town was annexed to the city of Brooklyn. He insists that by virtue of the provisions of chapter 450 of the Laws of 1894, he should be appointed on or transferred to the police force of this city as a captain and not as a patrolman. The portion of the act relating to the police is as follows : “ The regular policemen holding appointments from the board of police commissioners of the said town, January 1st, 1896, shall be appointed on the police force of the city of Brooklyn without a civil service examination, and they shall be credited b.y the police department of the city of Brooklyn with as long a term of service as they are entitled to as regular policemen under the police department of the city of Brooklyn and of the town of Flatlands' as shown by the records of said departments. The salaries of said policemen shall be the same as those of the city of Brooklyn, and said policemen shall- be entitled to all the rights, privileges and benefits of what kind soever now enjoyed by policemen under the police department of said city, and the said police department of the town of Flatlands shall become a police precinct of the city of Brooklyn.”

I am of opinion that the captain was included in the words “ regular policemen ” (see Laws of 1893, chap. 353, § 3), and I am further of opinion that, if the respondent appoints -the relator as a patrolman, he complies with the letter and the spirit of the act in question. The letter of the law is- complied with if the commissioner of police appoints-the relator “ on the police force of the city of Brooklyn.”

The spirit of the law is complied with by an appointment as patrolman, as will be seen by reference to the acts of annexation of New Lots, Flatbush and New Utrecht, and to chapter 779 of the Laws of 1895 relating to the police force of the town of Gravesend.

By no other law has an officer -been transferred ■ or appointed as an officer by implication, unless the act so specifically directed. In the act affecting New Lots (Laws of 1886, chap. 335) the fifteen regular policemen, were transferred to the Brooklyn force, “ retaining their respective ranks therein.” In the Flatbush act (Laws of 1894, chap. 356) the regular policemen and officers were transferred, the captain as a detective sérgeant and all others as patrolmen. In the Gravesend Annexation Act (Laws of 1895, chap. 779) the regular policemen and officers were transferred as patrolmen if found competent, and in the New Utrecht Annexation Act (Laws 1894,

chap. 451) the men and officers, if found competent, had preference 'in appointment as patrolmen. In New Lots' the police force had existed for at least eight years prior to annexation (Chap. 305, Laws of 1878), and the Legislature, perhaps for that reason, transferred the officers with like rank to the Brooklyn force.

In Flatlands the police force had existed only about a year prior to the passage of the act of annexation. In the act affecting Flat-hush, where the police force had existed at least sixteen years (Chap. 409, Laws of 1878), the captain was made a detective sergeant, and all other officers patrolmen. A captain of police in this city reaches that important position after long years of service as patrolman, roundsman and sergeant, and the appointment to that office of a person who had only served on the force two years and a half would be an unusual act, and it will be observed that the police force of Flatlands had only existed about that time when the act of annexation took effect. In view of the legislative action in 1894 and 1895 in relation .to the officers of police of Flatbush, New Utrecht and Gravesend, it seems to me that the captain of police of Flatlands is only entitled to be appointed as a patrolman on the force in this city. (Powers v. Shepard, 48 N. Y. 540; People v. Butler, 147 id. 164.)

The provision in the act that the salaries of the policemen appointed from the Flatlands force should he the same as those of the city of Brooklyn means that after crediting them with their service in the department of Flatlands, they shall be paid according to their grade on the Brooklyn force. (§5, tit. 11, Revised Charter [Chap. 583 of 1888].) The words “the said police department of the town of Flatlands shall become a police precinct of the city of Brooklyn ” simply made the former town a police precinct of the city.

Motion for a peremptory writ of mandamus denied, without costs.