Opinion
November 16, 1949.
Appeal from Court of Claims.
Claimant is the Surrogate of Kings County. His salary, payable by the City of New York, is based on the same salary "paid to" a justice of the Supreme Court in the second judicial district. (Judiciary Law, § 178, subd. 3.) It is provided by subdivision 17 of section 249-dd of the Tax Law that in a county such as Kings, the State shall pay a portion of the compensation of the Surrogate for ministerial services rendered in connection with tax matters. But this shall not be paid by the State if the effect would be, when all compensation was added together, to exceed the salary "paid to a justice of the supreme court in the judicial district in which the county is included." When, effective April 1, 1945, the Legislature allowed to justices of the Supreme Court an additional emergency war compensation of $1,000 annually (L. 1945, ch. 303), the City of New York did not pay the claimant that amount. It was the city's obligation to pay the salary of the Surrogate as the Legislature directed and to change it by a "continuing equalization" with Supreme Court salaries in the district. This obligation rests not on the State, but upon the county under section 13 of article VI of the Constitution which under the Administrative Code has been assumed by the city. When the provisions of subdivision 17 of section 249-dd of the Tax Law are examined to determine the circumstances under which no obligation to pay any part of a surrogate's compensation rests on the State, it will be seen that there is no such obligation when the total amount of compensation is equal to the amount "paid to a justice of the supreme court" in the district in which the county is located. The word "paid" here is used in its customary and not consummative sense. It means what is required to be paid by law. It does not mean that, if, in violation of a statutory mandate, there is a neglect by local fiscal officers to pay what the law requires them to pay, the State must take up local obligation where they leave off. The Tax Law provision was intended to aid surrogates if they were not entitled by law to receive as much compensation as justices of the Supreme Court; but if they were otherwise entitled to receive as much, it is plain that the State incurred no obligation. The order allowing the filing of a claim, which is considered here only on the merits of the claim as a matter of law, is reversed and the motion denied, without costs. Foster, P.J., Heffernan, Deyo, Santry and Bergan, JJ., concur.