166 Misc. 515 | City of New York Municipal Court | 1938
The Appellate Division in this Department recently held that the sheriff of Bronx county, because of his duties in connection with the administration of justice “ too well known and too numerous to mention,” comes specifically within the exception contained in chapter 637 of the Laws of 1932 (the O’Brien Economy Act) exempting the salaries of officers and employees in the Supreme Court from the reductions otherwise authorized thereby. (Hanley v. City of New York, 250 App. Div. 552.) On appeal to the Court of Appeals that decision was unanimously affirmed, without opinion (275 N. Y. 482). While an affirmance by the Court of Appeals without opinion does not necessarily adopt the opinion below in its entirety (Comm. Public Welfare v. Jackson, 265 N. Y. 440), the amount of the plaintiff’s salary recovery which was fully
The corporation counsel contends in the city’s behalf that these plaintiffs perform then duties under the direct and immediate supervision of the sheriff rather than the courts and are, therefore, county employees not entitled to immunity from pay reduction under the Economy Act. In so far as the cashier and the chief clerk of the sheriff’s office are concerned, that contention appears to be sound. Whether or not we may consider applicable to them the distinction between employees “in” the courts and “of” the courts, which was drawn by Mr. Justice Conway in Bane v. City of New York (167 Misc. 228), the fact remains that neither the sheriff’s cashier nor his chief clerk perform such duties in connection with the administration of justice as should reasonably embrace their salaries within an obvious legislative intent to protect our judicial system from interference by a municipal corporation. (Compare Albert v. City of New York, 250 App. Div. 555; affd., 275 N. Y. 484.) I
The under sheriff and the deputy sheriffs are entitled to that immunity. Counsel for the plaintiffs has very learnedly discussed in his brief the relationship between a sheriff and his general deputies to show that in both an historical and very practical sense the sheriff and his deputy are one and the same officer. That contention is sound. Suffice to say for the purpose of this opinion that it receives statutory support in section 9 of the Public Officers Law which provides occasions wherein a deputy shall perform the full functions of the sheriff. Inasmuch as the statute existed prior to the enactment of the Economy Act, not to mention the time-honored decisions classifying a deputy with the sheriff for so very many purposes, the Legislature must have had in mind the technical classification of sheriffs with deputy sheriffs when the Economy Act was passed and our appellate courts have held that the Legislature included the sheriff of Bronx county within the immunity provided in that act.
This exemption does not include the furlough reductions imposed upon the plaintiffs during the year 1934 pursuant to chapter 178 of the Laws of 1934 (the LaGuardia Economy Act). The immunity conferred in that statute is expressly limited to the justices of the courts. The city is entitled to judgment on the pleadings dismissing the entire complaints of the cashier and chief clerk, and is also entitled to judgment dismissing the claims of the other plaintiffs for furlough reductions. The under sheriff and the ten deputy sheriffs are entitled to judgment on the pleadings for the amount of all other deductions from their mandatory salaries during the years 1933 to 1937.
We come now to a consideration of the city’s counterclaims. Chapter 738 of the Laws of 1920, amending the Bronx County Act (Laws of 1912, chap. 548), fixed the salaries for the offices held by these plaintiffs at definite amounts therein stated. The plaintiffs urge that the statute should be construed to mean “ not less than ” the amounts specified. The city urges a construction of “ no more and no less than ” these salaries. There is no ambiguity here. The statute means precisely what it says. The salaries in each case are to be paid by the city of New York in the amounts stated — no more and no less. The employees are protected against a diminution and the taxpayers are protected against an increase. Nevertheless these salaries were increased by the city some years ago under a mistake of law. In 1924 the State Legislature enacted the Home Rule Law as authorized by an amendment of the State Constitution. The following year the municipal assembly of New York city enacted Local Law No. 2 (Local Laws 1925, p. 88) increasing, among others, the salaries of these plaintiffs above the amounts fixed by the State Legislature in 1920 and such increased salaries were paid to all of them other than the plaintiff McGuire, until 1932 when they were reduced below those amounts by the city after the enactment of the O’Brien Economy Act. McGuire, the under sheriff, was appointed to his office in 1934 and during that year he received a larger salary than that fixed by the State Legislature. For the subsequent years his salary was reduced likewise. The city makes no claim for overpayments prior to .1932 since recovery would be barred by the six-year Statute of Limitations.
• Settle order on notice in conformity with this decision; thirty days’ stay of execution from the date of service of a copy of judgment and notice of entry. ,