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(219 N. Y. 252)

order of the New York Special Term grantPEOPLE ex rel. PLANCON V. PRENDER ing a peremptory writ of mandamus, the

GAST, Comptroller of City of New York. Comptroller appeals. Order reversed, and (Court of Appeals of New York. Nov. 21, 1916.) application for mandamus denied. 1. COUNTIES 61 OFFICERS COUNTY

The budget for the city of New York for CLERK.

The county clerk in all his administrative du- the year 1916 was duly submitted by the ties is a local officer elected by the electors of board of estimate and apportionment to the the county and paid by taxes collected from the board of aldermen and duly adopted by the people included in the territory comprising the board of aldermen. It contained an item of county, and it is only when he performs state functions that he is to be treated as a state $161,067.85 under the heading “New York officer.

County--Administration County Clerk," for (Ed. Note.-For other cases, see Counties, the expenses of the office of the clerk of the Cent. Dig. § 36; Dec. Dig. Om 61.]

county of New York, and that item was sub2. COUNTIES 113(6)–OFFICERS COUNTY divided and as so subdivided contained, CLERK-POWERS.

The county clerk takes as incident to his of- among other items, the following: “General fice such powers as are necessary for the proper clerk, 30 at $1,200, $36,000.00,” and “General performance of his official duties, and the power clerk, 4 at $1,000, $4,000.00.” At that time to appoint assistants involves the exercise of the relator held one of the said general choice in respect to the appointees.

clerkships at $1,000, and one Cunningham, (Ed., Note.-For other cases, see Counties, Cent. Dig. 88 174, 180; Dec. Dig. Cm113(6).]

a general clerkship at $1,200. Each contin

ued to hold his position until February, 1916, 3. COUNTIES 75(1)-COUNTY CLERK-SAL

ARIES OF ASSISTANTS-POWER OF BOABD OF when Cunningham resigned, and the relator ESTIMATE AND APPORTIONMENT.

was promoted by the county clerk with the Greater New York Charter (Laws 1901, c. approval of the state civil service commis466) § 1, did not consolidate the counties with sion, to the position made vacant by the Greater New York, but section 8 vested their property in the city. Section 1583 requires the resignation of Cunningham, to take effect at salaries of all county officers to be audited and noon March 16, 1916. paid by the department of finance out of the ap

The pay roll for the count clerk's office propriation applicable thereto. Section 56 pro- for the last half of the month of March, vides that the board of aldermen, on the recommendation of the board of estimate and appor- 1916, was prepared and certified, and as so tionment, shall fix the salary of every person certified contained the name of the relator payable out of the city treasury. Section 230 requires the board to include in its annual esti- as a general clerk at a salary of $1,200 per mate sums necessary to pay the salaries of coun- year. Such pay roll, approved by the state ty officers; and section 226 requires the board civil service commission, was transmitted to of estimate to make a budget of expenses of the the comptroller of the city of New York for city and of the counties, and requires an estimate certification and audit as required by the of salaries of clerks, etc. The board of estimate resolved that in administering the budget no city charter. The comptroller refused to change be made in any county in the schedules audit the pay roll so far as it affected the of salaries without its authority by twelve votes relator, because, as alleged by him, the posiof the board, and that vacancies after January tion made vacant by the respondent Cunning1, 1916, should be filled only by its certificate. Held, that such resolution did not take the ham could not be filled until duly authorized power of appointment from a county clerk, but by the board of estimate and apportionment. that where he ignored it and appointed an assist. This proceeding was then commenced to ant to a vacancy occurring in March, 1916, the comptroller was not required to certify the pay require the comptroller to audit said pay roll. roll according to the salary fixed by the appoint. Further facts appear in the opinion. ment. (Ed. Note.-For_other cases, see Counties,

Lamar Hardy, Corp. Counsel, of New York Cent. Dig. $ 116; Dec. Dig. On 75(1).)

City (E. Crosby Kindleberger, of New York 4. MUNICIPAL CORPORATIONS 162(7)

City, of counsel), for appellant. James A. GREATER NEW YORK-BOARD OF ESTIMATE Donegan, of New York City, for respondent. APPROPRIATIONS.

The board of estimate and apportionment of Greater New York may, in good faith, refuse to

CHASE, J. (after stating the facts as make an appropriation for unnecessary em- above). It is the duty of the board of estiployés; and the power of the board is continu- mate and apportionment of the city of New (Ed. Note. For other cases, see Municipal "between the first day of October and the first

York, to annuallyCorporations, Cent. Dig. $ 366; Dec. Dig. 162(7).]

day of November meet, and make a budget of

the amounts estimated to be required to pay the Appeal from Supreme Court, Appellate Di- expenses of conducting the public business of the vision, First Department.

city of New York, as constituted by this act Mandamus by the People of the State of Kings, Queens and Richmond for the then next

(City Charter) and of the counties of New York, New York, on the relation of George E. Plan- ensuing year. Such budget shall be prepared in con, against William A. Prendergast, as such detail as to the titles of appropriations, the Comptroller of the City of New York. From terms and conditions, not inconsistent with law,

under which the same may be expended, the agan order of the Appellate Division (173 App. gregate sum and the items thereof allowed to Div. 618, 160 N. Y. Supp. 590), affirming an each department, bureau, office, board or commis

wFor other cases see same topic and KEY-NUMBER 10 all Key-Numbered Digests and Indexes

114 N.E.-28

ous.

sion, as the said board of estimate and apportion-porting appropriations in this budget for 'Sal. ment shall deem advisable. In order to enable aries, Regular Employés,' * shall be fillsaid board to make such budget, the presidents of ed only after certificate by duly authorized reprethe several boroughs, the heads of departments, sentatives of the board of estimate and apporbureaus, offices, boards and commissicners sball, tionment: (1) That the position is required; (2) not later than September tenth, send to the that the title and compensation for such vacant board of estimate and apportionment an estimate position conform to the standard titles, works, in writing, herein called a departmental esti- specifications and compensation grades fixed by mate, of the amount of expenditure, specifying in the board of estimate and apportionment where detail the objects thereof, required in their re- there has been such fixation; or (3) in the event spective departments, bureaus, offices, boards, of there having been no such fixation by the board and commissions, including a statement of each of estimate and apportionment, that the title and of the salaries of their officers, clerks, employés compensation for such vacant position are apand subordinates. Duplicates of these depart- parently proper.” mental estimates and statements shall be sent at the same time to the board of aldermen." Great

The budget so far as it related to the couner N. Y. Charter (L. 1901, c. 466) § 226. ty clerk, containing the resolutions from Provision is made in said section for a

which we have quoted, was adopted by the

board of aldermen. hearing upon said budget by the taxpayers and for its submission to the board of alder for or obtain a certificate from the board of

The county clerk did not make application men and its consideration by said board.

estimate and apportionment as required by The board of aldermen may reduce the amounts fixed by the board of estimate and said resolutions authorizing him to fill the

place made vacant by the resignation of apportionment except as the amounts are fixed by law, but may not increase said Cunningham, and it was for that reason that

the comptroller refused to audit the pay roll amounts "or vary the terms and conditions

so far as the relator is concerned. The resothereof nor insert any new items."

lutions were ignored by the county clerk. In July, 1915, the county clerk prepared and submitted bis departmental estimate as trative duties is a local officer elected by the

[1] The county clerk in all his adminisrequired by law to the board of estimate and electors of the county and paid by taxes colapportionment. It appears that the board of lected from the people included in the terriestimate and apportionment, before passing tory comprising the county. It is only when upon the estimate of the county clerk and be performs state functions that he is to be others, made an investigation and found that treated as a state officer. certain departments of the city and county

The municipal corporations known as coungovernments were “overmanned,” and some ties within the territory comprising the city of the estimates submitted were reduced and of New York were not consolidated with the the amounts proposed for certain positions municipal corporation known as the city omitted.

of New York (Greater N. Y. Charter, 1), but The comptroller in his affidavit included all of the property of every character and dein the record states:

scription whether of a public or private na“In many of such instances, however, the board ture owned by the counties became vested in decided that it was fairer to the individuals performing such work, as well as to the heads of the city of New York and divested out of such offices or departments, not to reduce the said counties (Greater N. Y. Charter, $ 8). number of such individuals by failing to make as All county charges and expenses and sallarge an appropriation in the budget for 1916 as aries of county officers in said counties and had previously been made but to wait until one or more of such positions became vacant and each of them must be audited and paid by the then refuse to sanction the filling of the vacancy. department of finance out of the fund or apIn this way considerable hardship to individuals propriation applicable thereto. Greater N. would be avoided."

Y. Charter, f 1583. The board of estimate and apportionment [2] A county clerk takes as incident to his in approving the budget adopted resolutions office such powers as are necessary for the from which we quote:

proper performance of his official duties “Resolved, that this, the budget of the city of (People ex rel. Gardenier v. Bd. Supervisors New York, as hereby made in pursuance of sec of Columbia Co., 134 N. Y. 1, 5, 31 N. E. 322), tion 226 of the Greater New York Charter shall be administered under the following terms and and the power to appoint assistants involves conditions, to be changed only by unanimous vote the exercise of choice in respect to the apof all the members of the board of estimate and pointees (People ex rel. Balcom v. Mosher, apportionment unless otherwise specifically stip- 163 N. Y. 32, 57 N. E. 88, 79. Am. St. Rep. ulated hereinafter.

"Second. That no change shall be made by any 552). It may be assumed for the purpose of board or head of an office, bureau, or department this decision that the selection and appointof the city or county governments in the sched- ment by the county clerk of his subordinates ules of 'Salaries, Regular Employés;' 'Salaries, is an incident to his office of which he cannot Temporary Employés ;' 'Wages, Regular Employés ;' Wages, Temporary Employés;' 'Fees be deprived, but it does not follow that he and Commissions,' herein contained, except when cannot be reasonably controlled therein so authorized thereto by twelve (12) votes of the far as the number of his subordinates is conboard of estimate and apportionment, and that cerned and in the amount to be expended no requests for changes shall be considered ex- therefor, the same as his power of selection cept as follows: *

*(c) That vacancies existing on January 1, can be reasonably controlled by the Civil

*

[3, 4] He is by statute given authority to thority to employ the relator, and the order appoint assistants to aid him in the perform for the writ was reversed and the application ance of his duties. Laws of 1884, c. 293, § 2, denied. The order of the Appellate Division and section 1727 of the Consolidation Act was unanimously affirmed in this court. (Laws 1882, c. 410). His authority is, how. People ex rel. O'Loughlin v. Board of Estiever, to some extent restricted by statute. mate, etc., of N. Y., 216 N. Y. 625, 110 N. E. The act of 1884 mentioned requires the coun- 1047. ty clerk annually to send to the board of es It was in that case necessarily held that timate and apportionment an estimate "of the limitation on the register's power to each of the salaries of all the officers, clerks, employ assistants in his office was not an employés and subordinates in the said office, unlawful interference with the duties of a excepting searchers," and the board of esti- constitutional officer. mate and apportionment are therein required In People ex rel. Bacon v. Board of Superto consider the estimate and to provide “the visors, Kings County, 105 N. Y. 180, 184, 11 amounts required to pay the expenses of con- N. E. 391, 392, the question involved. was the ducting the public business of the said * * salary of the chief clerk of the district attorcounty of New York," and the said board ney of Kings county, and the court, referring “have the same powers and shall perform the to a resolution of the board of supervisors of same duties with reference to such yearly the county, say that itestimates as it now has and performs with plainly indicated an intention on its part to rereference to similar yearly estimates submit- duce the salaries to be paid in the district at. ted to it by the several departments of the would be within the

sum provided for in the tax

torney's office to an aggregate amount which city government, and by other officers, persons budget, and that it was within their power to do and boards in said city.” It is provided by so, as they had full authority to regulate the said section of the Consolidation Act that:

salaries of the persons thereafter to be employed “The said clerk shall have the power to appoint pliedly given to the incoming district attorney

in that office, and that authority was thus imso many assistants to aid him in the perform to make such arrangements with the subordinates ance of the duties of his office as he shall deem to be appointed by him, in the way of scaling necessary for that purpose, not exceeding the down their salaries, as would bring the aggrenumber now authorized by law, and which he shall

, from time to time, be authorized to appoint gate within the sum to be raised by taxation." by the board of aldermen, whose duty it shall be, The claim of the relator was not sustained. from time to time, to prescribe the number of In People ex rel. Sullivan v. Mayor, etc., of assistants that may be so appointed.”

N. Y., 128 N. Y. Supp. 776, the relator sought It is provided by section 56 of the Greater to have his salary as clerk in the office of the New York Charter that the board of alder- clerk of Richmond county fixed as claimed men upon the recommendation of the board of by him and not in accordance with the annual estimate and apportionment shall “fix the budget of appropriations of the board of estisalary of every officer or person whose com- mate and apportionment. The application pensation is paid out of the city treasury.” was denied, and the court say:

By section 230 of the Greater New York “The board of estimate and apportionment, Charter it is provided that the board of es- under section 226 of the charter (Laws 1901, c. timate and apportionment shall, in addition budget of appropriations (which includes allow

466), has the power in making up the annual to such other amounts as it may in its dis- ances made to county officers within the limits cretion provide for public purposes in the of the city) to allow such appropriations as city of New York and the several counties would seem to said board advisable. The opposwholly contained within its territorial limits, capacity, they judged that two clerkships in ad

ing affidavits show that, acting in their official annually include in its final estimate “such dition to those already allowed in the budget of sum as may be necessary to pay the salaries 1910 were all that were advisable." of county officers within the counties of New In People ex rel. Sinnott v. Gaynor, 142 York, Kings, Queens and Richmond, and like App. Div. 908, 128 N. Y. Supp. 779, the deciwise all other expenses within said counties sion of the Special Term was affirmed upon and each of them which are county as dis- the opinion in People ex rel. Sullivan v. Maytinguished from city charges and expenses." or, etc., of N. Y., supra.

The courts have frequently recognized the The board of estimate and apportionment authority of the city government to control may in good faith refuse to make an approappropriations for and expenditures of money priation for unnecessary employés. People by the county officers within the territory of ex rel. Sullivan v. Mayor, etc., of N. Y., supra : the city of New York.

Matter of Griffin v. Williams, 168 App. Div. In People ex rel. O'Loughlin v. Board of 63, 153 N. Y. Supp. 926, affirmed 216 N. Y. Estimate, etc., of N. Y., 167 App. Div. 76, 152 651, 110 N. E. 1042; People ex rel. Kelly v. N. Y. Supp. 625, the relator obtained a per- Dooley, 169 App. Div. 423, 155 N. Y. Supp. emptory writ of mandamus to compel a trans- 326. fer of an unexpended balance of a sum ap The power of the board of estimate and propriated for the payment of employés to apportionment has been held to be continuous. pay certain persons for services performed Buckbee v. Board of Education, N. Y., 115 in the register's office of the county of Kings App. Div. 366, 100 N. Y. Supp. 943, affirmed by direction of the register. It was held in on opinion below 187 N. Y. 544, 80 N. E. substance that the register did not have au-1 1106.

As we have already seen, section 226 of by the board of aldermen, prohibited changes the Greater New York Charter expressly by any board as to salaries, except when au

thorized by the board of estimate, and provided provides that the

that vacancies occurring after January 31, "budget shall be prepared in such detail as to the 1915, should be filled only upon certificate of the titles of appropriations, the terms and conditions, board. Held, that the board of education had not inconsistent with law, under which the same no authority to appoint a copyist at $600 to may be expended

as the said board of a position occurring after January 31, 1915, at estimate and apportionment shall deem advis- $750, and that the comptroller" was not reable."

quired to audit a supplemental pay roll for the

difference. The resolutions were expressly made pursu

(Ed. Note. For other cases, see Municinal ant to the authority so given in said section Corporations, Cent. Dig. 88 567-570; Dec. Dig. 226. The appropriation of $36,000 for the 211.] salary of 30 clerks at $1,200 each was included in the budget and appropriated upon the

Appeal from Supreme Court, Appellate Di. terms and conditions authorized by the char-vision, First Department. ter that the same should not be expended in

In the matter of the application of . case of vacancies existing on January 1, 1916, Johanna A. Dobrovolny for writ of mandaor occurring thereafter so far as it relates to

mus against William A. Prendergast, as the positions so becoming vacant were con

Comptroller of the City of New York. From cerned unless authorized by a certificate of an order of the Appellate Division (159 N. the board of estimate and apportionment. Y. Supp. 1109), afirming an order which alThat provision of the resolution did not take lowed a peremptory writ of mandamus, de

fendant appeals. Order reversed, and apthe power of selecting and appointing subor

plication denied. dinates from the county clerk, but was a reasonable restriction upon such power of selec Appeal from an order of the Appellate Di. tion and appointment. The certificate requir- vision of the Supreme Court in the first jued related only to the necessity for filling the dicial department, entered May 26, 1916, afposition as stated in the resolution. It is firming an order which allowed a peremptory not required to determine the fitness of a can- writ of mandamus. didate for promotion or appointment.

The relator was appointed a typewriting We think, therefore, that the comptroller copyist in the bureau of school buildings, deshould not be required to audit and certify the partment of education, city of New York, in pay roll under consideration so far as it 1913, at a salary of $600 per annum. When affiects the relator as a clerk at $1,200 a year. the budget for the year 1915 was adopted it

The order should be reversed and the appli- contained an appropriation for said bureau cation for mandamus denied, with costs in all of said department for three 'typewriting courts.

copyists at $600, $750, and $900 per year, re

spectively, and the relator was then holding WILLARD BARTLETT, C. J., and HIS- the position at $600 per annum. In FebruCOCK, CUDDEBACK, HOGAN, CARDOZO, ary, 1915, a vacancy occurred in the posiand POUND, JJ., concur.

tion of typewriting copyist at $750 per an

num, and the relator alleges that she was Order reversed, etc.

promoted by the board of education to that position. The board of education made ap

plication to the board of estimate and appor(219 N. Y. 280)

tionment for a certificate authorizing it to fill DOBROVOLNY V. PRENDERGAST, City such vacancy, but the application was denied, Comptroller.

although a consent was given to filling the (Court of Appeals of New York. Nov. 21, position at a salary of $600. It appears that 1916.)

the relator was paid at the rate of $750 per MUNICIPAL Cor ORATIONS Om 211-BOABD OT

annum from February 10, 1915, to July 1, EDUCATION-POWERS-SALARIES.

1915, and thereafter at the rate of $600 per Greater New York Charter (Laws 1901, c. annum. A supplemental pay roll was pre466) $ 1091, empowers the board of education pared by the board of education including an to adopt by-laws fixing the salaries of all members of the supervising and teaching staff. Sec-item for the relator amounting to the differtions 96, 108, and 1062 declare the board to be ence between $600 per annum and $750 per one of the administrative departments of the annum for the months of July to December, city. Section 56 requires the board of alder: 1915, inclusive. The comptroller refused to men, on recommendation of the board of estimate, to fix the salary of every person payable certify and approve such pay roll so far as out of the city treasury other than teachers the relator was concerned. In March, 1916, and members of the supervising staff of the an order was obtained in this proceeding didepartment of education. Section 1067 authorizes the board to appoint such clerks, etc., as recting the defendant to certify and approve it may deem necessary; and section 226 pro- such payroll. That order has been affirmed vides that the budget shall be prepared in such by the Appellate Di ision of the Supreme detail as to the titles of appropriation, the Court, and an appeal from such order of terms and conditions, not inconsistent with law, under wbich the same may be expended. affirmance has been taken to this court. FurA resolution of the board of estimate, adopted | ther facts appear in the opinion.

men.

Lamar Hardy, Corp. Counsel, of New York, 226 of the Greater New York Charter, shall be City (Terence Farley, of New York City, of administered under the following terms and

conditions: counsel), for appellant. John E. O'Brien, of

"Second. That no change shall be made by New York City, for respondent.

any board, or head of an office, bureau or de

partment in the city or county governments in CHASE, J. (after stating the facts as the schedules of 'Salaries, Regular Employés ;' above). The board of education has power to ular Employés" Wages, Temporary Employés ;'

'Salaries, Temporary Employés ;' 'Wages, Reg. adopt by-laws fixing the salaries of all mem- 'Fees and Commissions,' herein contained, ex. bers of the supervising and teaching staff. cept when authorized by twelve (12) votes of Greater New York Charter (L. 1901, C. 466) & the board of estimate and apportionment, and

that no request for changes shall be considered 1091.

except as follows: It is, however, the duty of the board of al "(c) That vacancies occurring after January dermen, upon recommendation of the board 31, 1915, in schedules supporting appropriations of estimate and apportionment, to fix the sal- in this budget for ‘Salaries, Regular Employés

or Salaries, Temporary Employés' shall be ary of every officer or person whose compen- filled only after certificate by the duly authorsation is paid out of the city treasury oth-ized representatives of the board of estimate er than day laborers and teachers, examiners, and apportionment that the title and compenand members of the supervising staff of the standard title, work, specifications, and com

sation for such vacant position conform to the department of education. Greater New York pensation grades fixed by the board of estimate Charter, $ 56. The relator is not a member and apportionment. This provision shall not of the supervising or teaching staff. The

apply to vacancies occurring in positions for

which the title and compensation shall have board of education while a corporation is previously been standardized by this board. In one of the administrative departments of the making appointments to vacant positions for city. Greater New York Charter, 88 96, 108, which standard titles and compensations have 1062; Clarke Co. v. Board of Education of be made at the lowest rate within the

grade for

been fixed by this board, such appointment shall N. Y., 156 App. Div. 842, 142 N. Y. Supp. 106; such position, unless this requirement is speaffirmed 215 N. Y. 646, 109 N. E. 1093. cifically waived by resolution of the board."

The power to fix the salary of a typewrit The money appropriated for the $750 posiing st in the employ of the department tion as a typewriting copyist was so apof education rests with the board of alder-/ propriated subject to the terms and condi

Hogan v. Board of Education, N. Y., tions stated in the resolution quoted. 200 N. Y. 370, 93 N. E. 951; People ex rel. We are of the opinion that the board of Walters v. Prendergast, 171 App. Div. 941, education is bound by the limitations on the 156 N. Y. Supp. 1140; affirmed 218 N. Y. 629, appropriations so far as it affects the re112 N. E. 1071; Sauerbrunn V. Board of lator and that the comptroller should not be Education, N. Y., 150 App. Div. 407, 135 N. Y. required to prove and audit the suppleSupp. 85; affirmed on opinion below 208 N. mental payroll. People ex rel. Plancon v. Y. 550, 101 N. E. 1120.

Prendergast, supra. Section 56, from which we have quoted, The order should be reversed and the aprelates to employés of the board of educa- plication for writ of mandamus denied, with tion. Hogan v. Board of Education, N. Y., costs in all courts. supra. The board of education may appoint such officers, clerks, or subordinates in its

HISCOCK, CUDDEBACK, HOGAN, CARadministration service as it may deem neces

DOZO, and POUND, JJ., concur. WILLARD sary (Greater New York Charter, 8 1067), but

BARTLETT, C. J., absent. such power is subject to reasonable regula Order reversed, etc. tion and control in behalf of the city.

Section 226 of the Greater New York Charter expressly provides that:

(185 Ind. 713) The budget "shall be prepared in such detail HOUCK et al. v. McCOY. (No. 22758.) as to the titles of appropriations, the terms and

Dec. 22, 1916.) conditions, not inconsistent with law, under (Supreme Court of Indiana. which the same may be expended."

APPEAL AND EBBOR Om761-BRIEF8—REQUI

SITES AND SUFFICIENCY. Under that provision of the charter the

Under Supreme Court rule 22 (55 N. E. board of estimate and apportionment and the v), requiring appellant's brief to contain, under board of aldermen may prescribe reasonable a separate heading of each error relied on, terms and conditions on which the amounts separately numbered propositions or points,

stated concisely, and without argument or elabprovided by the budget can be expended. oration, together with the authorities relied on People ex rel. Plancon v. Prendergast, 219 as supporting them, where appellants relied for N. Y. 252, 114 N. E. 433, handed down here- reversal upon nine errors, assigned, and the with.

portions of the brief designated as points and authorities contained

propositions A resolution was passed by the board of without any attempt to classify them under estimate and apportionment and adopted by various heads, there was nothing for review, the board of aldermen in connection with the especially where, after the omission was point appropriation and budget of 1915, which) ed out, appellants made no effort to amend, nor

contention that there was a good faith effort to provided:

comply with the rule. "That this, the budget of the city of New (Ed. Note.-For other cases, see Appeal and York, as hereby made in pursuance of section | Error, Cent. Dig. $ 3096; Dec. Dig. Ow761.)

aw for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

numerous

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