172 Misc. 1059 | N.Y. Sup. Ct. | 1939
This is a proceeding instituted by the petitioner and members of bis association pursuant to article 78 of the Civil Practice Act, in which a peremptory order is sought directing the respondents to refrain from making further provisional appointments to the position of typewriter-bookkeeper, grade 3, to dismiss all provisional appointees performing the duties of that position and to certify the petitioner and others similarly situated for appointment to the position of typewriter-bookkeeper, grade 3, at $1,800 per annum, the minimum salary. The petitioner heretofore applied for this relief on motion at Special Term, which was granted by Mr. Justice Levy in a decision (171 Misc. 332) to the extent of directing a trial of the issues.
The evidence adduced on the trial does not justify any finding that the actions of the respondents have been illegal, arbitrary or unreasonable. It appears that the filling of vacancies is conditioned upon the granting by the director of the budget of a certificate to fill a vacancy at a specified salary. The testimony shows that the budget director has certified that vacancies for typewriter-bookkeeper be filled at salaries not in excess of $1,500. This procedure is valid and has been approved (Matter of Rushford v. LaGuardia, 280 N. Y. 217), and such employees may not receive a higher salary' than is specified in the certificate permitting the vacancy to be filled. A direction to the respondents to certify the petitioners for appointment at $1,800 per annum is not justified.
Judgment for defendants accordingly, dismissing the petition. Settle order.