The case of People ex rel. Schelpp v. Knox (48 App. Div. 477), which arose in the second department, did not involve the construe-' t-ion of the Consolidation Act, hor the Greater Hew York charter. *341except so far as necessary to determine how far its provisions affected the rights of one who became a member of the police force of the city of Brooklyn before consolidation took place. Therefore, what is said in the opinion as to the Consolidation Act, to the effect that the promotion of members of the police force should be made only on grounds of “ meritorious police service and superior capacity,” and that this clearly permitted the promotion of a patrolman for such conduct as that which led to the promotion of the relator in that case, is obiter. The question how promotions might be made outside the borough of Brooklyn, and of others than such as had become members before the consolidation, it was not necessary there to decide nor was it decided. It is apparent that whether an- officer was entitled to promotion “ on account of any gallant or meritorious deed in the discharge of his duty,” under the Brooklyn charter,, could not be determined by competitive examination. But, under the provisions of the statutes and civil service rules applicable to-this case, which -require the transmission to the civil service commission of the record of each candidate for promotion, all questions of “seniority, meritorious police service and superior capacity” may be determined by the commissioners, and this includes heroic-conduct with the other matters. What the court really determined in the Schelpp case was that the relator, by reason of the statutes in force when he became a member of .the police force, acquired a vested right tó be promoted for gallant conduct, which had not been attempted to be taken away. Such a case is not now before us. I, therefore, concur in this opinion. .