The relator had served upwards of five years as a patrolman, and, having resigned, was reappointed at the time the charter went into effect. Section 299 of the Greater New York charter (Laws of 1897, chap. 378) provides, “ All such members who are patrolmen and who shall have served .five years or upwards on said force shall be members of the first grade.”
Undoubtedly the increased salary allotted to patrolmen of the first grade was based on the idea of experience gained during a certain number of years in the service; but there is nothing in the .act requiring such service to be continuous. The relator having served the requisite number of years on the force, presumably obtained that experience and efficiency entitling him to be ranked in the first grade.
It seems to me to be a forced construction to hold that such service should have been continuous ; because that, in effect, would debar one who by sickness or other sufficient, cause, had been prevented from serving continuously on the force. I think the rule laid down in People ex rel. Bolster v. French (46 Hun, 232), as to the construction to be given to statutes extending benefits to those who have served a certain number of years on the force, is'applicable here, and that a construction similar to the one given to'the statute in that case would accord to the relator the rights which he obtained in the court below.
I, therefore, dissent.
Order reversed, with costs, and motion denied, with costs.