184 A.D. 428 | N.Y. App. Div. | 1918
The relator is one of the official court attendants of the Supreme Court, county of Kings. Prior to January 1, 1918, his annual salary was $1,800. On December 13, 1917, the justices of the Supreme Court residing in Kings county passed a resolution increasing his annual salary to $2,000 to take effect on and from January 1, 1918. The comptroller has refused to pay the salary at the increased rate, but for the months of January, February and March has paid to the relator the sum of $150 per month. The relator alleges that he has protested to the comptroller that he received the warrants for $150 only on account, and protested against his failure to. send the balance. This statement is denied by the comptroller. A peremptory writ of mandamus has been
(1) That the petition is insufficient and the order to show cause should have been dismissed. The alleged insufficiency is the failure to state that no previous application for the order to show cause had been made, as required by rule 25 of the General Rules of Practice; that it did not show any reason for requiring a shorter notice of motion than eight days as required by rule 37 of the General Rules of Practice and the Code of Civil Procedure (§ 780). The order appealed from recites an adjournment of the argument of the motion from the 11th to the 16th day of April, 1918, and no mention is made in the order of any preliminary objection to the sufficiency of the papers having been presented. The objections are contained in the comptroller’s affidavit, but that is verified on the seventeenth day of April. Where technical objections are desired to be raised to the papers their sufficiency should be challenged at the first opportunity and the point should be stated in the order to have been preliminarily raised and passed upon by the court. Otherwise the objection will be deemed to have been waived and cannot be urged upon appeal. The comptroller obtained by the adjournment the full time to which he would have been entitled and was in no way prejudiced. These objections will, therefore, be disregarded.
(2) It is claimed that material facts alleged in the petition were denied by the respondent and that a peremptory writ should not have been granted. If there are material allegations of fact denied then a peremptory writ should not have been granted. The comptroller does not deny that he had knowledge of the passing of the resolution by the justices fixing the relator’s salary. But he argues that such might have been the case because no formal notice was served upon him, although he admits that a copy of the resolution was
The reason why the comptroller did not deny the facts might appear if reference were had to the minutes of the board of estimate and apportionment on the various dates set forth in the secretary’s affidavit, as published in the City Record, where presumably would be found a record of those in attendance and voting upon the resolutions.
In my opinion it was not necessary for the relator or the justices to have notified the comptroller personally. If the justices had the power to fix the salary, their notice to the board of estimate and apportionment of their action with the request that such action be taken by the board as was appropriate and necessary to provide the funds and pay the salary was sufficient. The conceded facts show that the justices performed their whole duty and that a payroll prepared in accordance with their resolution was presented to.the comptroller and that he refused to audit the same or make the payment therein required. The only other fact denied is that the relator received the payment of $150 under protest. Assuming that the relator’s salary was legally fixed at the
An accord and satisfaction presupposes a bona fide dispute that can be adjusted between the parties. To make such a dispute, the comptroller must be assumed to have the power to dispute the amount of the salary, so that the parties may arrive at an agreement for which the payment would afford a consideration. We find, however, in another portion of this same section of the charter this provision: “ The power hereby given to settle and adjust such claims shall not be construed to authorize the comptroller to dispute the amount of any salary established by or under the authority of any officer or department authorized to establish the same * * * except when necessary to prevent fraud.”
Therefore, it is clear that the provision as. to receiving the money and signing the payroll without a written protest constituting an accord and satisfaction cannot apply to the salary of a State officer whose salary .is made a county charge, and is fixed by State officers under the authority of a statute, any more than the comptroller would have power to dispute a similar salary fixed by statute.'
This brings us to the important question of this appeal, and that is, have the justices of the Supreme Court the power
The objection is urged that the taxes of the year 1918 have been levied and no provision has been made for this increased salary, and the board of estimate and apportionment has made no provision therefor. This presents no obstacle for the proper performance of the duty of the comptroller to provide funds. Section 187 of the Greater New York charter (as amd. by Laws of 1910, chap. 683) gives him the power to issue special revenue bonds in such a contingency. We do not assume, however, to direct in what manner the money to meet this increase in salary shall be raised. It was the duty of the board of estimate and apportionment to act when requested by the justices to provide the funds. It cannot nullify the act of the justices of the Supreme Court by a failure or refusal to act.
The proper authority having fixed the salary, it must be paid.
The peremptory writ of mandamus was properly granted, and the order should be affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Laughlin, Smith and Shearn, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
See Consol. Laws, chap. 30 (Laws of 1909, chap. 35), § 168, as amd. by Laws of 1913, chap. 826.— [Rep.