Opinion
May 11, 1971
Judgment, Supreme Court, New York County entered on December 9, 1969, directing that respondent-appellant take all the necessary and proper action to reclassify the petitioners to the title of Court Clerk II, in the Criminal Court of the City of New York, effective July 1, 1966, and directing that respondent certify that each of the petitioners is entitled to receive as compensation from the City of New York for the performance of the duties of his position from July 1, 1966 the difference in salary paid as Court Clerk I and what each should have received as an incumbent in the position of Court Clerk II in the Criminal Court, unanimously affirmed, without costs and without disbursements. It appears that the functions formerly and presently performed by petitioners are such as are assigned to the position and title of Court Clerk II. Since the performance of such duties was not unlawful, being in-title functions, Special Term properly directed that petitioners' positions be converted to Court Clerk II ( Matter of Ainsberg v. McCoy, 26 N.Y.2d 56.) Matter of Rubin v. McCoy ( 36 A.D.2d 922), decided this date, is not contrary, for in that case the duties were unlawfully performed, being out of title. "It is undisputed that if the prior duties had been unlawfully performed, that is, had been out-of-title, a reclassification on that basis would not be permissible." ( Matter of Ainsberg v. McCoy, supra, p. 58.)
Concur — Markewich, J.P., Nunez and Tilzer, JJ.; McNally and Steuer, JJ., concur in the following memorandum: We concur on constraint of Matter of Ainsberg v. McCoy ( 26 N.Y.2d 56).