191 A.D. 866 | N.Y. App. Div. | 1920
The action is brought to recover a balance of salary claimed to be due. The plaintiff is a civil service employee in the office of the comptroller of the city of New York. His position is in the competitive class. He entered the employ of the finance department in 1883, at a salary of $1,300 per annum. He has been promoted from time to time. In 1915, and for some time prior thereto, he was classified under the civil service rules in the fifth grade of the clerical service of the civil service, the minimum salary of which was $2,400 a year. On February 1, 1907, the salary of his position was fixed at $2,550 per annum and he was paid his salary at this rate until December 31, 1915. The board of aldermen, on the recommendation of the board of estimate and apportionment in fixing the salaries in the budget for 1916 effected a general reduction. The salary for the position held by the plaintiff was established at $1,800. On December twenty-eighth the comptroller wrote the following letter to the plaintiff: “ This is to notify you that the budget for 1916
The plaintiff on the next day replied: “ In view of the action of the Board of Estimate and Apportionment and the Board of Aldermen in fixing salaries in the budget for 1916, I hereby consent to a reduction in salary from the rate of $2,550 to the rate of $1,800 per annum, beginning January 1, 1916, and I consent to a reduction in grade from Grade 5 to Grade 4, as Examiner, in the Division of Auditors and Examiners, Auditing Bureau, Department of Finance.”
Thereafter, his salary check at the above rate was delivered to him and the payroll presented for his signature, and he signed the same as a receipt in full for his salary.
The theory of the plaintiff’s action is that inasmuch as his position carrying his salary of over $2,400 was in the fifth grade, he could not be reduced to a lower grade and a lower salary without charges being preferred and an opportunity given for him to be heard; hence that he is entitled to recover the difference in salary between the $1,800 and the $2,550 that he previously received. The provision
The cases relied upon by the appellant are where the rate of compensation for several positions is fixed by law, and a person holding a position paying the higher salary is transferred to a position for which a lower salary is fixed. In such case, of course, this is a reduction and can only be made for cause. The case of Matter of Shepard v. Oakley (181 N. Y. 339), upon which the plaintiff relies, is clearly distinguishable from the instant case. That was an appeal from an order denying the motion for a peremptory writ of mandamus. The relator was appointed originally to a temporary position at a salary of $12 a day, which was after-wards changed to $1,500 a year. His salary was increased from time to time. He was transferred from the finance department to the water supply department. His salary was subsequently increased in that department to $2,700. Thereafter the commissioner of the water supply department reduced the salary to $1,500, on the ground that the increase in the relator’s salary had not been authorized by the board of estimate and apportionment, and that, therefore, his legal salary was $1,500. The Court of Appeals discussed
The judgment should be affirmed, with costs.
Clarke, P. J., Laughlin, Smith and Merrell, JJ., concur.
Judgment affirmed, with costs.
See Laws of 1901, chap. 466, § 1543.— [Rep.
See Laws of 1901, chap. 466, § 56, as amd. by Laws of 1902, chap. 435; Id. § 226, as amd. by Laws of 1915, chap. 378, and Laws of 1917, chap. 258; Id. § 1543.— [Rep.