#### The People of the State of New York ex rel. Christian L. Walter, Respondent, *v.*Arthur Woods, as Police Commissioner of the City of New York, Appellant.

Second Department,

May 28, 1915.

Municipal corporations — appointment of police officers, city of Mew York — probationary period — examination as to past conduct — power of commissioner — stare decisis.

The previous record of a patrolman in the city of New York serving his probationary period may be examined into by the police commissioner and a permanent appointment denied although the applicant is on the eligible list of the civil service commission. The investigation as to his fitness for appointment is not confined to his conduct during the probationary period, but may cover his conduct while in the service of former employers.

A decision on a question of the powers of officials of the city of New York made in one department of the Appellate Division should be followed when the same question arises in another department.

Appeal by the defendant, Arthur Woods, as police commissioner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of February, 1915, as resettled by an order entered in said clerk’s office on the 12th day of March, 1915, granting relator’s motion for a peremptory writ of mandamus.

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      *Charles J. Nehrbas [Terence Farley, John Lehman*and *Frank L. Polk*with him on the brief], for the appellant.

*Alfred J. Talley [Denis B. O’Brien*with him on the brief], for the respondent.

Putnam, J.:

Counsel for the relator urges that the probationary period for patrolman is only to let the appointing power see how the offcer has performed his duty during this period. That if his probationary service has been good the commissioner cannot go behind his civil service examination and verify applicant’s statements of facts, and cannot make inquiries as to his character and conduct with former employers. That after being placed on the eligible list the applicant has made his past a “closed book” to the commissioner. The police department has a rule (No. 725) which calls for investigation by that department and for efforts to have such information furnished in writing and embodied in a written report to be made four months after the probationary appointment.- Under this rule relator’s statements in his application filed with the civil service examiners were investigated by being compared with court records, also the circumstances of the relator’s discharge from employment as a street car conductor. Thereupon relator was notified in writing “that your conduct and capacity as a Probationary Patrolman having been unsatisfactory to the Police Commissioner, you will not be appointed permanently at the end of your probationary period.”

Upon his application the Special Term granted a writ of peremptory mandamus directing the commissioner to appoint the relator.

A probationary period for such appointments is recognized as an important and necessary part of the examination itself, by which the commissioner of police can supplement the applicant’s written answers by investigation conducted by direct inquiry into the conduct of the applicant while he held prior positions. (Laws of 1883, chap. 354, § 2; *Matter of Murray,*18 App. Div. 337; *People ex rel. Van Petten*v. *Cobb,*13 id. 56, 59; *People ex rel. Sweet*v. *Lyman,*157 N. Y. 368.)

By the present Civil Service Law, “All appointments or *5employments in the classified service [except veterans] shall be for a probationary term not exceeding the time fixed in the rules.” (Consol. Laws, chap. *7*[Laws of 1909, chap. 15], § 9.) The rules may fix the time or length of probation, but cannot annex an unauthorized limitation. *(People ex rel. Kastor*v. *Kearny,*164 N. Y. 64, 66.) “Probation,” as defined, signifies a proceeding to ascertain the truth, to determine character and qualification. Rule XI of the municipal civil service commission provides for such probationer that, “if his conduct or capacity on probation be unsatisfactory to the appointing officer the probationer shall be notified in writing that at the end of such period he shall, for that reason, not be retained.”

This rule is not to be construed to limit the full scope and purpose of probation which the statute commands.

Civil service commissions and examiners have not facilities for making thorough investigation by outside inquiries into the applicant’s personal records. We cannot circumscribe the statutory probation so as to deprive the commissioner of the salutary check by looking up past records, besides those of the actual service of the probationer, to the end that, before making a permanent appointment, the probationer’s conduct, capacity and fitness may be found satisfactory.

And this same ruling, in February last, was made by the Appellate Division of the First Department *(People ex rel. Holsten*v. *Woods, 167*App. Div. 899), where the commissioner found the probationer’s prior record so unsatisfactory as to disqualify him for appointment. Manifestly, this court should follow this judicial determination of the power of the commissioner of police, which extends throughout the greater city of Yew York.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and relator’s motion denied, with twenty-five dollars costs.

Jerks, P. J., Thomas, Carr and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and relator’s motion denied, with twenty-five dollars costs.