Opinion
284 A.D. 396 131 N.Y.S.2d 766 In the Matter of SALVATORE CANNIZZARO et al., Respondents, v. LAZARUS JOSEPH, as Comptroller of the City of New York, et al., Appellants. Supreme Court of New York, First Department. June 15, 1954
APPEAL from an order of the Supreme Court at Special Term (DI FALCO, J.), entered December 8, 1953, in New York County, which granted an application by petitioners for an order under article 78 of the Civil Practice Act directing the comptroller and the budget director of the City of New York to pay to petitioners compensation at the rate of $4,632.05 per annum and back pay. Petitioners are twelve bookbinders, Grade 5, in the competitive class of the civil service. Nine of them are employed by the County Clerks of Bronx, Kings, and New York Counties, and three of them are employed by the Commissioners of Records of the Surrogates' Courts of Bronx and New York Counties (cf. Surrogate's Ct. Act, § § 21-b, 21-c, 21-d, 22). The salaries of all the petitioners are paid by the City of New York. They are presently being paid $3,550 per annum plus two cost-of-living adjustments totaling $600, or a total of $4,150. The State Civil Service Commission adopted a resolution on June 27, 1950, effective July 1, 1950, amending rule VII of the Rules for the Classified Civil Service as follows: 'In the service of any county within the City of New York, positions shall be graded as follows: * * * Grade 4. All positions, the compensation of which is at the rate of more than $3420 but not more than $4020 per annum. Grade 5. All positions, the compensation of which is at the rate of more than $4020 but not more than $4620 per annum. Grade 6. All positions, the compensation of which is at the rate of more than $4620 per annum.' Petitioners asserted on that basis that they were entitled to the minimum of $4,021, plus the two cost-of-living adjustments granted by the city, which on a percentage basis in their case, would amount to $250 and $361.05, or a total of $4,632.05.
COUNSEL
Anthony Curreri of counsel (Seymour B. Quel with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for appellants.
A. Bernard King for respondents.
Per Curiam.
The record establishes without contradiction through an affidavit of the administrative director of the New York State Department of Civil Service (1) that the resolution adopted June 27, 1950, amending rule VII of the Rules for the Classified Civil Service was to revise for promotion purposes the salary grades of positions in the service of the five counties of the City of New York; and (2) that the proposed salary range for the grades therein set forth 'was not to fix the salaries of incumbents of such positions' but to permit employees whose temporary cost-of-living adjustments had been made permanent legally to receive such increases. The director also admitted that the power to fix the salaries of employees whose compensation is paid from the city treasury, unless otherwise provided by statute, 'is vested in the Board of Estimate and the Director of the Budget of the City of New York.' Irrespective of any such admission, the resolution of the State Civil Service Commission could not deprive the Board of Estimate of the express power and authority confided in it under section 67 of the New York City Charter ( Matter of Tormey v. La Guardia, 172 Misc. 1091, affd. 259 A.D. 802, affd. 284 N.Y. 607).
In Matter of Corrigan v. Joseph (304 N.Y. 172) the sole issue was whether employees in graded positions could obtain fixation of wages by invoking the prevailing rate of wages formula; the salary fixing power of the Board of Estimate under section 67 was not in issue.
Section 67 of the New York City Charter vests in the Board of Estimate power to fix the salary of every person (other than day laborers) whose compensation is paid out of the city treasury unless it is otherwise specifically provided by Charter or statute. As to petitioners not employed in a Surrogate's Court, no statute exists which vests in some other body or officer the power to fix petitioners' salaries.
As to the three petitioners, Fachon, Caputo and Courtade, employed by the Surrogates of New York or Bronx County, the Surrogates have plenary power to fix the salaries of their employees and the petition does not allege that the Surrogates fixed the salaries at levels higher than that which they have been paid or that thereafter the Board of Estimate refused to make the legally required appropriations.
For the reasons stated, the petitions of all these petitioners must be dismissed.
The order appealed from should be reversed and the petition dismissed, with costs.
PECK, P. J., DORE, COHN, BASTOW and BOTEIN, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellants, and the petition dismissed, with costs.