(dissenting). The fire commissioner’s action in temporarily assigning petitioners as acting battalion chiefs was necessary for the efficient administration of the department and was neither unreasonable, nor violative of civil service law.
The fire commissioner is the official authorized by law to manage and direct the operations of the fire department. (New York City Charter, § 487; Matter of Calfapietra v. Walsh, 183 Misc. 6, affd. 269 App. Div. 734, affd. 294 N. Y. 867; People ex rel. Rogers v. Tinney, 184 App. Div. 748.) As an incident to his power as department head in managing the operations of the fire department, he is specifically authorized to make assign*447ments of duties and to change such assignments “ as he may consider advisable ”. (New York City Charter, §§ 883, 884.) The Regulations for the Uniformed Force of the Fire Department of the City of New York give to the fire commissioner the power to do the very thing which petitioners would have this court enjoin, viz.: to “ designate members of any rank to perform temporarily the duties required of members of the next higher rank”. (N. Y. City Regulations of Uniformed Force of Fire Department, §§ 3.1.14, 2.1.5.)
Moreover, without budgetary approval of appropriation a head of a department cannot make appointments. (Matter of Ross v. LaGuardia, 287 N. Y. 28.) Nor may the head of a department who is vested with the responsibility of running that department be compelled to make permanent appointments in the absence of specific legislative mandate. (Matter of Jaffe v. Board of Educ., 265 N. Y. 160; Matter of Davis v. Board of Educ., 263 App. Div. 369, mod. 288 N. Y. 330.) Lacking an appointment thereto, an employee is not entitled to the salary or the tenure of a position even though he is temporarily assigned to and performs the duties of that position. (Stetson v. Board of Educ., 218 N. Y. 301; Thomson v. Board of Educ., 201 N. Y. 457; Matter of Aronson v. Finegan, 253 App. Div. 713, motion for leave to appeal denied 277 N. Y. 738.) The orders issued here by the fire commissioner were made in good faith and in the exercise of a sound discretion. With the exercise of such discretion the courts will not interfere.
There is no authority in law for an order to annul the action of the fire commissioner in assigning petitioners to temporarily perform the duties of acting battalion chief, nor is there any warrant for an injunction order restraining the fire commissioner from making such assignments in the future. While the plight of petitioners, who for some time have been on an eligible list for promotion to battalion chief, is unfortunate and their claim for permanent promotion to such position where there are vacancies, is one possessed of much merit, an appeal for relief must go to the Legislature and not to the courts.
Accordingly, I dissent and vote to affirm.
Peck, P. J., Dore and Bastow, JJ., concur with Boteix, J.; Cohx, J., dissents and votes to affirm in opinion.
Order reversed and respondent is directed to refrain from continuing to make the appointments proscribed in the opinion herein. More precise provisions will be made in the order to be entered herein. Settle order on notice.