People ex rel. Burns v. Baker — 124 A.D. 565

Majority

p. 565

The People of the State of New York ex rel. William J. Burns, Respondent, v. William F. Baker and Others, Constituting the Municipal Civil Service Commission of the City of New York, Appellants.

Second Department,

February 28, 1908.

Headnote

Civil service — police officer, city of New York — credit marks for heroic act.

When a police officer in the city óf New York has been once promoted for an heroic act, he is not again entitled to be credited with marks for the same act when' he enters a competitive civil service examination to get on the eligible list for promotion to a still higher grade.

Appeal by the defendants, William F. Baker and others, constituting the Municipal Civil Service Commission of the City of New York,, 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 lltli day of December, 1907, granting the relator’s application for a peremptory writ of mandamus.

p. 566

James I). Bell [Francis K. Pendleton with him on the brief], for the appellants.

Robert IE. Wilson, for the respondent.

The relator was. promoted from patrolman to roundsman for an act of heroic conduct in pursuing and taking a murderer at great personal risk. How, having entered a competitive examination by the municipal civil service commissioners to get on the eligible list for promotion to another grade, i. e., that of sergeant, he claims that he is entitled to be credited, with 4 marks for the said act of heroism ; that, being the number given in marking for conduct and efficiency, where the competitor is entitled to any credit for such an act. The civil service commissioners disallowed them to him, and;, appeal from the order, below allowing- a writ of mandamus to the relator to compel them to credit him with them; and re-rate him on the list accordingly. ' -

. Having been-, credited with the act of heroism, in the grade in which he performed it, and promoted thereon, lie is not.entitled to be credited with it again' in order to get- another promotion to a higher grade. ■ Section 288. of the city charter provides that “ Individual acts of personal bravery may be treated as an element ' of meritorious service in such examination ” (examinations for promotion by the civil service commissioners), “ the relative rating therefor to be fixed by the municipal civil'service commission ”. The said commission has a rule confining rating for service (which includes conduct and efficiency) to service in the grade from which promotion is sought (Bulé XV, sub. 6). The language of the said section of the charter is hot mandatory that the competitor shall be given a rating for his acts of bravery in, every succeeding grade in which he enters a competitive examination for promotion, without regard to whether they Were performed in that grade.

The order sho.uld be reversed and the- motion deniéd.

Woodward, Jenks, Bich and Miller, JJ., concurred..

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