167 Misc. 805 | N.Y. Sup. Ct. | 1938
To the extent that the present application relates to the petitioner’s salary after January 1, 1938, it is denied, in view of the fact that the inclusion of the petitioner’s salary at the rate of $3,360 per annum in the 1938 budget constituted a new and independent fixation of his salary which the city authorities had the right and the power to make. In so far as the motion is concerned with the proper amount of the petitioner’s salary for the second half of the year 1937, it is likewise denied on the ground that the rights of the petitioner are not so clear as to justify the granting of the relief sought, which, prior to the enactment of the present article 78 of the Civil Practice Act, was in the nature of mandamus. As the Court of Appeals said, in the case of People ex rel. McCabe v. Matthies (179 N. Y. 242, at p. 244): “ The remedy by mandamus is of an exceptional character, and the writ issues only in that class of cases where a clear legal right is made to appear and there is no
