Opinion
November 14, 1949.
Appeal from an order in a consolidated proceeding under article 78 of the Civil Practice Act requiring appellants to pay petitioners the difference between the salaries to which their proper civil service status allegedly entitled them and the salaries actually received. Petitioners, employed by the board of education of the city of New York, were appointed to positions in Grade 4 of the engineering service after passing competitive examinations therefor. Subsequently, the municipal civil service commission, by resolution, reclassified the positions and titles in the engineering service, effective December 17, 1940; and pursuant to paragraph 4 (f) of that resolution, incumbents of the former Grade 4 having the titles held by petitioners were reclassified as engineers. The salary fixed for that title was $4,260 to but not including $6,000 per annum. It was also provided, however, that where such reclassified persons were receiving an annual salary less than $4,260 at the time the resolution took effect, their maximum salary should be $4,259 per annum; and as petitioners were receiving less than $4,260 at that time, they were reclassified as engineers with a salary limit of $4,259. Claiming that by virtue of section 16 Civ. Serv. of the Civil Service Law, as amended by chapter 929 of the Laws of 1942, appellants were under the mandatory duty to pay them at least the minimum salary established for their title and grade by the reclassification resolution, and asserting that the minimum salary therefor was $4,260, petitioners instituted the instant proceedings to compel the payment of the difference between that amount and the salaries actually received from May 23, 1942, the effective date of the amendment to section 16 Civ. Serv. of the Civil Service Law, and the dates when they allegedly were promoted to the grade receiving $4,260 per annum. Order reversed on the law, without costs, and petitions dismissed, without costs. The findings of fact are affirmed. If we assume, without deciding, that the municipal civil service commission was without power to establish a salary maximum of $4,259 per annum for petitioners, it does not follow that petitioners are entitled to an order directing the certification and payment by appellants of salaries of $4,260 per annum. It clearly was the intent of the commission to limit the salaries to be received; and the court, in the guise of construing the reclassification resolution, may not give to it an effect not intended by the commission. (Cf. Matter of Beggs v. Kern, 284 N.Y. 504, 514). We may not presume that the commission would have wished or permitted the classification provisions of the resolution, affecting petitioners and others similarly situated, to stand with the salary range provisions exscinded. (Cf. People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 60.) If, therefore, the restrictive provisions of paragraph 4 (f) of the resolution as to salary were invalid, the provisions of the same paragraph which classified petitioners as engineers must likewise fall; and, accordingly, there would be no valid classification of petitioners in a grade which would require payment of the minimum salary of $4,260 per annum. Petitioners consequently have not established a clear legal right to the relief demanded ( Matter of Pruzan v. Valentine, 282 N.Y. 498, 501), and the order appealed from must be reversed and the petitions dismissed. Nolan, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.