(dissenting). The petitioner appeals from two orders made at Special Term denying his application for an order directing his reinstatement as police patrolman of the city of Glens Falls, Warren county, N. Y.
Section 66 of the charter of the city of Glens Falls, being contained in chapter 29 of the Laws of 1908, reads as follows:
*444“ § 66. Appointment of police force. For the purpose of providing a permanent and effective police force, it shall be the duty of said board of public safety, as soon after their appointment as possible, to select from the electors of the city, and appoint by warrant of appointment bearing the signatures of a majority of said commissioners, and to be immediately filed with the city clerk, as many permanent policemen as they may deem necessary, not to exceed one for each fifteen hundred inhabitants of said city, as shown by the last preceding State or national enumeration of the corporation of Glens Falls, except as hereinafter otherwise specified, and as vacancies occur to fill the same in the same manner. And said board shall from said number of policemen appoint a chief of police through whom said board may promulgate rules, regulations and orders to the police force, and who shall have the immediate direction and control of said force; subject, however, at all times to the rules, regulations and orders of said board or of its president as authorized by the board, and such chief of police and policemen appointed in the manner aforesaid, may hold his respective office during good behavior or until he becomes incapacitated or until the board shall decide such chief of police or policeman has become incompetent and inefficient and cause his removal after due trial as herein provided.”
Section 75 reads as follows:
“ § 75. Power to appoint special police. The board of public safety shall also'haverpower to appoint special policemen, who shall hold their office by virtue of such appointment for such period as such board shall direct, and shall be subject to the provisions of this act, and may be removed at the pleasure of said board. Such special policemen shall forthwith take the oath of office, and shall thereupon become vested with all powers and shall discharge all the duties of policemen under this act and the statutes of this State, subject to such limitations and restrictions as said board-shall fix and prescribe; such special policemen shall receive such fees and compensation as may be allowed to them by said board of public safety, or as otherwise hereinbefore provided.”
It appears that there has never been prepared a certified eligible list containing the names of persons eligible for appointment to the office of special'policeman of the city of Glens Falls.
The qualifications established by the civil service commission of the city of Glens Falls relative to the police department were and are qualifications for the appointment to the regular or permanent police force. All examinations held by the said commission relative to the police department were examinations for the position of regular or permanent policemen. All eligible lists *445prepared by the civil service commission relative to the police force contained the names of persons eligible for appointment to the regular or permanent police force.
There was held on the 26th of April, 1935, by the municipal civil service commission an examination for policemen, firemen and police sergeant, and the petitioner took said examination. On June 7, 1935, there was certified to the board of public safety an eligible list for the appointment to the police bureau of the department, “ the following named persons are eligible to appointment, having had a passing rate of 75% or more upon examination.” Then followed a fist of thirteen names and then a clause which read as follows: “ It should be noted that the foregoing constitutes an eligible list and not the certification to you of names for appointment to the permanent force.” The petitioner’s name was ninth on the foregoing list.
On the 2d day of August, 1935, at a regular meeting of the board of public safety, the following occurred:
“ Resolved that Fred A. Healey be and hereby is appointed special policeman upon filing a $1000 bond, his compensation to begin as of July 26th when he started to work, he to act during the pleasure of the Board.”
He made an application for appointment as special policeman. It is to be assumed that he knew the difference between the special policemen and the regular policemen as provided by the charter. He continued to act as a special policeman from the time of his appointment until the 11th of November, 1941, when, on December 15, 1941, the following resolution was adopted:
“ Resolved that Fred A. Healey be and he hereby is discharged and removed from the position of special policeman of the City of Glens Falls and that said discharge and removal be effective as of the 11th day of November, 1941.”
It is claimed by the petitioner that he was serving as patrolman and that such position or employment was within his scope of civil service as it applied to the city of Glens Falls and that the eligible list applies to the position held by him so that he could not be dismissed and that Ms status entitled him to a continuous service under the civil service.
It appears from the record that there was never any eligible list for the special policemen and that special policemen were clearly differentiated from the permanent force by the provisions of the charter and the written application of the petitioner for Ms appointment shows that he possessed this knowledge. No matter what his duties were, the position that he occupied was not in the competitive class of the civil service.
*446It is urged by the petitioner that the city civil service commission by conducting the examination and certifying to the board of public safety the names of those on the eligible list intended to include all classes of policemen; it does not seem that that was their intention because there is proof in the record of the definite exclusion of special policemen.
The city of Glens Falls is evidently overhauling its police system, as it has a right to do, and it had a right to discharge and dismiss the petitioner because it was with that distinct understanding that he was first accepted, and there is nothing in the record to indicate that he was in any way deceived.
The orders appealed from should be affirmed, without costs.
Orders reversed on the law, with fifty dollars costs and disbursements, prayer of the petition granted and petitioner reinstated, with payment of salary from the time of the attempted separation from the service.