199 A.D. 218 | N.Y. App. Div. | 1921
Prior to the year 1921 the petitioners, pursuant to the provisions of section 168 of the Judiciary Law, as amended by chapter 826 of the Laws of 1913, appointed thirty-five court attendants, and in 1921 fixed the salary of each for the year 1922 at $2,500, and pursuant to the provisions of section 161, subdivision 3-a, of the Judiciary Law, as added by chapter 401 of the Laws of 1909, and amended by chapter 267 of the Laws of 1920, they appointed two typewriter operators, and fixed the salary of one for the year 1922 at $2,500 and of the other at $2,250. In the month of June, 1921, the petitioners by resolution duly adopted a budget or departmental request on the appellants for the year 1922, and therein fixed and provided for the salaries of the thirty-five court attendants and the two type-, writer operators for the year 1922, as already stated, pursuant to section 226 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1917, chap. 258), and caused the same to be delivered to the secretary of the board of estimate and apportionment on the 12th day of July, 1921. Appellants, however, instead of adopting this part of the budget as presented by the petitioners, thereafter, on or prior to the 1st day of October, 1921, purporting to act in compliance with the provisions of said section 226 of the charter, prepared
This proceeding was instituted by a verified petition dated the 26th of October, 1921, and an order to show cause thereon returnable the next day, and resulted in the order from which the appeal has been taken.
It is conceded that the offices and positions in question were duly created and that the salaries thereof were duly fixed by the petitioners pursuant to express authority of the Legislature contained in the statutes to which reference has been made, and that the statutory provisions gave appellants no authority or discretion with respect to the number of the offices or positions or the salaries thereof. This regrettable controversy evidently arose from the fact that the appellants were desirous that no salaries should be increased for the year 1922, and communicated their wishes to the petitioners who, having so promised to increase the salaries, were not at liberty to accede thereto.
The appellants say that the budget adopted by them provides for the maximum amount permitted by article 8, section 10, of the State Constitution to be raised by general tax for the year 1922, and that they are required to adopt the budget on or before the twentieth of October and are prohibited by said section 226 from thereafter increasing any item. If it be true that the budget so adopted provides for the maximum amount that may be raised by the general tax in the county of Kings for the year 1922, then, of course, appellants may not be compelled to increase the gross amount of the budget, for that might invalidate the entire tax levy. I am of opinion that, without jeopardizing the tax levy, the appellants may still be required to perform this statutory duty even on the assumption that the gross amount of the budget cannot be increased, for in preparing and adopting the budget it was their duty in the first instance to provide for salaries fixed by law and all other amounts fixed by law to be raised by the general tax for 1922, and that duty should have been performed before they made provisions for estimates of moneys not for fixed obligations but which they deemed necessary and with respe'ct to the amount of which they were vested with discretion. It is still competent for the appellants to make reductions with respect to items or amounts resting in their discretion to the extent required to enable them to perform their mandatory duties. Said section 226 requires
It follows that the order should be so modified and as modified affirmed, with ten dollars costs and disbursements.
Clarke, P. J., Dowling, Page and Merrell, JJ., concur.
Order modified as directed in opinion and as so modified affirmed, with ten dollars costs and disbursements to respondents. Settle order on notice.