¶1On April 28, 1911, the relator was removed from the police force by Commissioner Cropsey, who had found the relator guilty, after a trial, of conduct unbecoming an officer. On July 1,1911, Commissioner Waldo, who had succeeded Cropsey, granted the relator a rehearing, and assumed to reinstate the relator to his position as a patrolman. This act of Commissioner Waldo was in direct conflict with section 1543a of the Greater New York charter (Laws of 1901, chap. 466, as added by Laws of 1907, chap. 723), as it existed in July, 1911. On July 12, 1912, Commissioner Waldo granted relator an indefinite leave of absence without pay, and while he was still on leave of absence, the commissioner appointed him to the position of sergeant. He never acted as sergeant. In 1915 the Legislature amended section 1543a of the charter (Laws of 1915, chap. 79) removing therefrom the prohibition against the reinstatement of officers removed for conduct unbecoming an officer. The relator applied to Commissioner Wood for reinstatement, and on September 8, 1915, was reinstated as a patrolman. He brings this proceeding to obtain his reinstatement as a sez’geant. The Special Term has granted a peremptory writ of mandamus directing such reinstatement.
¶2The act of Commissioner Waldo in restoring the relator was contrary to the express provision of law, and was void. The relator was not a member of the force when Commissioner Waldo assumed to appoint him a sergeant, and as he never acted as szzch he never became a sergeant, de facto or de jure. Commissioner Wood, therefore, properly restored him to the grade of patrolman, the position he held when removed.
¶3The order will be reversed, with ten dollars costs and disbursements, and the motion denied, with fifty dollars costs.
¶4Clarke, P. J., Laughlin, Dowling and Davis, JJ., concurred.
¶5Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.