It appears to me that the so-called transfers of the defendants Worstell and McHamara were, in law and in fact, promotions, and contrary to the Constitution (art. 5, § 9) and the Civil Service Statute (City Charter, § 128, at seq.), which require that both appointments and promotions shall be from competitive examinations and according to the rating established thereby.
In April, 1903, such an examination "was conducted by the municipal civil service commissioners for the positions of superintendent and assistant superintendent of public baths and comfort stations in the borough of Brooklyn; and, on the eligible list made up therefrom, the defendants Worstell and McHamara were rated, respectively, as 7th and 17th, the same list being for both positions.
At that time the defendant Worstell held the inferior position of bath attendant at a salary of $900 a year, having been appointed from an eligible list for that position. On July 6th, 1903, he was transferred, at the request of the appointing officer and by a certificate of the city civil service commissioners, to the position of assistant superintendent of public baths and comfort stations at a salary of $1,500 a year; and, on December 1st in the same year, he was transferred, in the same way, to the position of superintendent at a salary of $2,500 a year.
If he was eligible to be transferred from assistant superintendent to superintendent, he would first have to be legally .an assistant superintendent. I do not think he was such. His transfer from the position of bath attendant to that of assistant superintendent was a promotion, and contrary to the Constitution and the statute. If city civil service rule 14 (formerly rule 40) could be construed to sanction it, such ¡rule would be void. Those prior to him on the eligible list cannot be crowded off in any such way.
*341The case of McNamara is even worse. He was transferred to the position of assistant superintendent of public baths and comfort stations with a salary of $1,500 a year on December 29th, 1903, from a third grade clerkship in the bureau of buildings of the borough of Brooklyn with a salary of $1,050 a year. Though seventeenth on the eligible list he, in this way, got the position over the heads of those ahead of him on the eligible list.
The positions of bath attendant and third grade clerk) from which these two defendants were transferred, have duties entirely different to those of superintendent and assistant superintendent of baths and comfort stations. This is so manifest that it does not need to be stated.
Judgment for the plaintiff as prayed for.