officer. order of the New York Special Term granting a peremptory writ of mandamus, the Comptroller appeals. Order reversed, and application for mandamus denied. The budget for the city of New York for the year 1916 was duly submitted by the board of estimate and apportionment to the board of aldermen and duly adopted by the board of aldermen. It contained an item of $161,067.85 under the heading "New York County Administration-County Clerk," for [Ed. Note. For other cases, see Counties, the expenses of the office of the clerk of the Cent. Dig. § 86; Dec. Dig. 61.] The county clerk takes as incident to his office such powers as are necessary for the proper performance of his official duties, and the power to appoint assistants involves the exercise of choice in respect to the appointees. county of New York, and that item was subCOUNTY divided and as so subdivided contained, among other items, the following: "General clerk, 30 at $1,200, $36,000.00," and "General clerk, 4 at $1,000, $4,000.00." At that time the relator held one of the said general clerkships at $1,000, and one Cunningham, a general clerkship at $1,200. Each continued to hold his position until February, 1916, when Cunningham resigned, and the relator was promoted by the county clerk with the approval of the state civil service commission, to the position made vacant by the resignation of Cunningham, to take effect at noon March 16, 1916. [Ed.. Note.-For other cases, see Counties, Cent. Dig. §§ 174, 180; Dec. Dig. 113(6).] 3. COUNTIES 75(1)-COUNTY CLERK-SALARIES OF ASSISTANTS POWER OF BOARD OF ESTIMATE AND APPORTIONMENT. The pay roll for the county clerk's office for the last half of the month of March, 1916, was prepared and certified, and as so certified contained the name of the relator Greater New York Charter (Laws 1901, c. 466) § 1, did not consolidate the counties with Greater New York, but section 8 vested their property in the city. Section 1583 requires the salaries of all county officers to be audited and paid by the department of finance out of the appropriation applicable thereto. Section 56 provides that the board of aldermen, on the recommendation of the board of estimate and apportionment, shall fix the salary of every person 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 of estimate to make a budget of expenses of the city and of the counties, and requires an estimate of salaries of clerks, etc. The board of estimate resolved that in administering the budget no change be made in any county in the schedules of salaries without its authority by twelve votes of the board, and that vacancies after January 1, 1916, should be filled only by its certificate. Held, that such resolution did not take the power of appointment from a county clerk, but that where he ignored it and appointed an assistant to a vacancy occurring in March, 1916, the comptroller was not required to certify the pay roll according to the salary fixed by the appoint ment. [Ed. Note.-For other cases, see Counties, Cent. Dig. § 116; Dec. Dig. 75(1).] 4. MUNICIPAL CORPORATIONS 162(7) GREATER NEW YORK-BOARD OF ESTIMATEAPPROPRIATIONS. The board of estimate and apportionment of Greater New York may, in good faith, refuse to make an appropriation for unnecessary employés; and the power of the board is continu ous. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 366; Dec. Dig. 162(7).] civil service commission, was transmitted to the comptroller of the city of New York for certification and audit as required by the city charter. The comptroller refused to audit the pay roll so far as it affected the relator, because, as alleged by him, the position made vacant by the respondent Cunningham could not be filled until duly authorized by the board of estimate and apportionment. This proceeding was then commenced to require the comptroller to audit said pay roll. Further facts appear in the opinion. Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger, of New York City, of counsel), for appellant. James A. Donegan, of New York City, for respondent. CHASE, J. (after stating the facts as above). It is the duty of the board of estimate and apportionment of the city of New York, to annually— "between the first day of October and the first 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. Mandamus by the People of the State of New York, on the relation of George E. Plancon, against William A. Prendergast, as Comptroller of the City of New York. From an order of the Appellate Division (173 App. Div. 618, 160 N. Y. Supp. 590), affirming an city of New York, as constituted by this act [City Charter] and of the counties of New York, Kings, Queens and Richmond for the then next ensuing year. Such budget shall be prepared in such detail as to the titles of appropriations, the under which the same may be expended, the agterms and conditions, not inconsistent with law, gregate sum and the items thereof allowed to each department, bureau, office, board or commis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-28 sion, as the said board of estimate and apportion-porting appropriations in this budget for 'Salment 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 commissioners shall, 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." Greater N. Y. Charter (L. 1901, c. 466) § 226. Provision is made in said section for a hearing upon said budget by the taxpayers and for its submission to the board of aldermen and its consideration by said board. The board of aldermen may reduce the amounts fixed by the board of estimate and apportionment except as the amounts are fixed by law, but may not increase said amounts "or vary the terms and conditions thereof nor insert any new items." In July, 1915, the county clerk prepared and submitted his departmental estimate as required by law to the board of estimate and apportionment. It appears that the board of estimate and apportionment, before passing upon the estimate of the county clerk and others, made an investigation and found that certain departments of the city and county governments were "overmanned," and some of the estimates submitted were reduced and the amounts proposed for certain positions omitted. The comptroller in his affidavit included in the record states: "In many of such instances, however, the board decided that it was fairer to the individuals performing such work, as well as to the heads of such offices or departments, not to reduce the number of such individuals by failing to make as large an appropriation in the budget for 1916 as had previously been made but to wait until one or more of such positions became vacant and then refuse to sanction the filling of the vacancy. In this way considerable hardship to individuals would be avoided." The board of estimate and apportionment in approving the budget adopted resolutions from which we quote: "Resolved, that this, the budget of the city of New York, as hereby made in pursuance of section 226 of the Greater New York Charter shall be administered under the following terms and conditions, to be changed only by unanimous vote of all the members of the board of estimate and apportionment unless otherwise specifically stipulated hereinafter. * * The budget so far as it related to the county clerk, containing the resolutions from I which we have quoted, was adopted by the board of aldermen. for or obtain a certificate from the board of The county clerk did not make application estimate and apportionment as required by said resolutions authorizing him to fill the place made vacant by the resignation of Cunningham, and it was for that reason that the comptroller refused to audit the pay roll so far as the relator is concerned. The resolutions were ignored by the county clerk. trative duties is a local officer elected by the [1] The county clerk in all his adminiselectors of the county and paid by taxes collected from the people included in the territory comprising the county. It is only when he performs state functions that he is to be treated as a state officer. The municipal corporations known as counties within the territory comprising the city of New York were not consolidated with the municipal corporation known as the city of New York (Greater N. Y. Charter, § 1), but all of the property of every character and description whether of a public or private nature owned by the counties became vested in the city of New York and divested out of said counties (Greater N. Y. Charter, § 8). All county charges and expenses and salaries of county officers in said counties and each of them must be audited and paid by the department of finance out of the fund or appropriation applicable thereto. Greater N. Y. Charter, § 1583. [2] A county clerk takes as incident to his office such powers as are necessary for the proper performance of his official duties (People ex rel. Gardenier v. Bd. Supervisors of Columbia Co., 134 N. Y. 1, 5, 31 N. E. 322). and the power to appoint assistants involves the exercise of choice in respect to the appointees (People ex rel. Balcom v. Mosher, 163 N. Y. 32, 57 N. E. 88, 79 Am. St. Rep. "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 (c) That vacancies existing on January 1, can be reasonably controlled by the Civil cept as follows: [3, 4] He is by statute given authority to appoint assistants to aid him in the performance of his duties. Laws of 1884, c. 295, § 2, and section 1727 of the Consolidation Act (Laws 1882, c. 410). His authority is, however, to some extent restricted by statute. The act of 1884 mentioned requires the county clerk annually to send to the board of estimate and apportionment an estimate "of each of the salaries of all the officers, clerks, employés and subordinates in the said office, excepting searchers," and the board of estimate and apportionment are therein required to consider the estimate and to provide "the amounts required to pay the expenses of conducting the public business of the said * * * county of New York," and the said board "have the same powers and shall perform the same duties with reference to such yearly estimates as it now has and performs with reference to similar yearly estimates submitted to it by the several departments of the city government, and by other officers, persons and boards in said city." It is provided by said section of the Consolidation Act that: "The said clerk shall have the power to appoint so many assistants to aid him in the perform ance of the duties of his office as he shall deem necessary for that purpose, not exceeding the number now authorized by law, and which he shall, from time to time, be authorized to appoint by the board of aldermen, whose duty it shall be, from time to time, to prescribe the number of assistants that may be so appointed." It is provided by section 56 of the Greater New York Charter that the board of aldermen upon the recommendation of the board of estimate and apportionment shall "fix the salary of every officer or person whose compensation is paid out of the city treasury." By section 230 of the Greater New York Charter it is provided that the board of estimate and apportionment shall, in addition to such other amounts as it may in its discretion provide for public purposes in the city of New York and the several counties wholly contained within its territorial limits, annually include in its final estimate "such sum as may be necessary to pay the salaries of county officers within the counties of New York, Kings, Queens and Richmond, and likewise all other expenses within said counties and each of them which are county as distinguished from city charges and expenses." The courts have frequently recognized the authority of the city government to control appropriations for and expenditures of money by the county officers within the territory of the city of New York. thority to employ the relator, and the order for the writ was reversed and the application denied. The order of the Appellate Division was unanimously affirmed in this court. People ex rel. O'Loughlin v. Board of Estimate, etc., of N. Y., 216 N. Y. 625, 110 N. E. 1047. It was in that case necessarily held that the limitation on the register's power to employ assistants in his office was not an unlawful interference with the duties of a constitutional officer. In People ex rel. Bacon v. Board of Supervisors, Kings County, 105 N. Y. 180, 184, 11 N. E. 391, 392, the question involved was the salary of the chief clerk of the district attorney of Kings county, and the court, referring to a resolution of the board of supervisors of the county, say that it— "plainly indicated an intention on its part to reduce the salaries to be paid in the district atwould be within the sum provided for in the tax torney's office to an aggregate amount which budget, and that it was within their power to do so, as they had full authority to regulate the salaries of the persons thereafter to be employed in that office, and that authority was thus impliedly given to the incoming district attorney to make such arrangements with the subordinates to be appointed by him, in the way of scaling down their salaries, as would bring the aggregate within the sum to be raised by taxation." The claim of the relator was not sustained. In People ex rel. Sullivan v. Mayor, etc., of N. Y., 128 N. Y. Supp. 776, the relator sought to have his salary as clerk in the office of the clerk of Richmond county fixed as claimed by him and not in accordance with the annual budget of appropriations of the board of estimate and apportionment. The application was denied, and the court say: "The board of estimate and apportionment, under section 226 of the charter (Laws 1901, c. 466), has the power in making up the annual budget of appropriations (which includes allowances made to county officers within the limits of the city) to allow such appropriations as would seem to said board advisable. The opposcapacity, they judged that two clerkships in ading affidavits show that, acting in their official dition to those already allowed in the budget of 1910 were all that were advisable." In People ex rel. Sinnott v. Gaynor, 142 App. Div. 908, 128 N. Y. Supp. 779, the decision of the Special Term was affirmed upon the opinion in People ex rel. Sullivan v. Mayor, etc., of N. Y., supra. The board of estimate and apportionment may in good faith refuse to make an appropriation for unnecessary employés. People ex rel. Sullivan v. Mayor, etc., of N. Y., supra: Matter of Griffin v. Williams, 168 App. Div. 63, 153 N. Y. Supp. 926, affirmed 216 N. Y. 651, 110 N. E. 1042; People ex rel. Kelly v. Dooley, 169 App. Div. 423, 155 N. Y. Supp. In People ex rel. O'Loughlin v. Board of Estimate, etc., of N. Y., 167 App. Div. 76, 152 N. Y. Supp. 625, the relator obtained a peremptory 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 pay certain persons for services performed in the register's office of the county of Kings by direction of the register. It was held in substance that the register did not have au apportionment has been held to be continuous. Buckbee v. Board of Education, N. Y., 115 App. Div. 366, 100 N. Y. Supp. 943, affirmed on opinion below 187 N. Y. 544, 80 N. E. 1106. As we have already seen, section 226 of the Greater New York Charter expressly provides that the "budget shall be prepared in such detail as to the titles of appropriations, the terms and conditions, not inconsistent with law, under which the same may be expended as the said board of estimate and apportionment shall deem advisable." The resolutions were expressly made pursuant to the authority so given in said section 226. The appropriation of $36,000 for the salary of 30 clerks at $1,200 each was included in the budget and appropriated upon the terms and conditions authorized by the charter that the same should not be expended in case of vacancies existing on January 1, 1916, or occurring thereafter so far as it relates to the positions so becoming vacant were concerned unless authorized by a certificate of the board of estimate and apportionment. That provision of the resolution did not take the power of selecting and appointing subordinates from the county clerk, but was a reasonable restriction upon such power of selection and appointment. The certificate required related only to the necessity for filling the position as stated in the resolution. It is not required to determine the fitness of a candidate for promotion or appointment. We think, therefore, that the comptroller should not be required to audit and certify the pay roll under consideration so far as it affects the relator as a clerk at $1,200 a year. The order should be reversed and the application for mandamus denied, with costs in all courts. WILLARD BARTLETT, C. J., and HISCOCK, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. Order reversed, etc. (219 N. Y. 280) by the board of aldermen, prohibited changes by any board as to salaries, except when authorized by the board of estimate, and provided that vacancies occurring after January 31, 1915, should be filled only upon certificate of the board. Held, that the board of education had no authority to appoint a copyist at $600 to a position occurring after January 31, 1915, at $750, and that the comptroller was not required to audit a supplemental pay roll for the difference. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 567-570; Dec. Dig. 211.] Appeal from Supreme Court, Appellate DIvision, First Department. In the matter of the application of Johanna A. Dobrovolny for writ of mandamus against William A. Prendergast, as Comptroller of the City of New York. From an order of the Appellate Division (159 N. Y. Supp. 1109), affirming an order which allowed a peremptory writ of mandamus, de fendant appeals. Order reversed, and application denied. Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 26, 1916, affirming an order which allowed a peremptory writ of mandamus. The relator was appointed a typewriting copyist in the bureau of school buildings, department of education, city of New York, in 1913, at a salary of $600 per annum. When the budget for the year 1915 was adopted it contained an appropriation for said bureau of said department for three typewriting copyists at $600, $750, and $900 per year, respectively, and the relator was then holding the position at $600 per annum. In February, 1915, a vacancy occurred in the position of typewriting copyist at $750 per annum, and the relator alleges that she was promoted by the board of education to that position. The board of education made application to the board of estimate and apportionment for a certificate authorizing it to fill DOBROVOLNY V. PRENDERGAST, City such vacancy, but the application was denied, Comptroller. (Court of Appeals of New York. Nov. 21, 1916.) MUNICIPAL CORPORATIONS 211-Board of EDUCATION-POWERS-SALARIES. Greater New York Charter (Laws 1901, c. 466) § 1091, empowers the board of education to adopt by-laws fixing the salaries of all members of the supervising and teaching staff. Sections 96, 108, and 1062 declare the board to be one of the administrative departments of the city. Section 56 requires the board of aldermen, on recommendation of the board of estimate, to fix the salary of every person payable out of the city treasury other than teachers and members of the supervising staff of the department of education. Section 1067 authorizes the board to appoint such clerks, etc., as it may deem necessary; and section 226 provides that the budget shall be prepared in such detail as to the titles of appropriation, the terms and conditions, not inconsistent with law, under which the same may be expended. A resolution of the board of estimate, adopted although a consent was given to filling the position at a salary of $600. It appears that the relator was paid at the rate of $750 per annum from February 10, 1915, to July 1, 1915, and thereafter at the rate of $600 per annum. A supplemental pay roll was prepared by the board of education including an item for the relator amounting to the difference between $600 per annum and $750 per annum for the months of July to December, 1915, inclusive. The comptroller refused to certify and approve such pay roll so far as the relator was concerned. In March, 1916, an order was obtained in this proceeding directing the defendant to certify and approve such payroll. That order has been affirmed by the Appellate Division of the Supreme Court, and an appeal from such order of affirmance has been taken to this court. Further facts appear in the opinion. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for appellant. John E. O'Brien, of New York City, for respondent. CHASE, J. (after stating the facts as above). The board of education has power to adopt by-laws fixing the salaries of all members of the supervising and teaching staff. Greater New York Charter (L. 1901, c. 466) 1091. It is, however, the duty of the board of aldermen, upon recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city treasury other than day laborers and teachers, examiners, and members of the supervising staff of the department of education. Greater New York Charter, § 56. The relator is not a member of the supervising or teaching staff. The board of education while a corporation is one of the administrative departments of the city. Greater New York Charter, §§ 96, 108, 1062; Clarke Co. v. Board of Education of N. Y., 156 App. Div. 842, 142 N. Y. Supp. 106; affirmed 215 N. Y. 646, 109 N. E. 1093. "Second. That no change shall be made by any board, or head of an office, bureau or department in the city or county governments in the schedules of 'Salaries, Regular Employés ;' ular Employés; 'Wages, Temporary Employés;' 'Salaries, Temporary Employés;' 'Wages, Reg'Fees and Commissions,' herein contained, except when authorized by twelve (12) votes of the board of estimate and apportionment, and that no request for changes shall be considered except as follows: * * * "(c) That vacancies occurring after January 31, 1915, in schedules supporting appropriations in this budget for 'Salaries, Regular Employés or Salaries, Temporary Employés' shall be filled only after certificate by the duly authorized representatives of the board of estimate and apportionment that the title and compenstandard title, work, specifications, and comsation for such vacant position conform to the pensation grades fixed by the board of estimate and apportionment. This provision shall not apply to vacancies occurring in positions for which the title and compensation shall have previously been standardized by this board. In making appointments to vacant positions for which standard titles and compensations have be made at the lowest rate within the grade for been fixed by this board, such appointment shall such position, unless this requirement is specifically waived by resolution of the board." tions stated in the resolution quoted. The power to fix the salary of a typewrit- The money appropriated for the $750 posiing copyist 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 condimen. Hogan v. Board of Education, N. Y., 200 N. Y. 370, 93 N. E. 951; People ex rel. Walters v. Prendergast, 171 App. Div. 941, 156 N. Y. Supp. 1140; affirmed 218 N. Y. 629, 112 N. E. 1071; Sauerbrunn v. Board of Education, N. Y., 150 App. Div. 407, 135 N. Y. Supp. 85; affirmed on opinion below 208 N. Y. 550, 101 N. E. 1120. Section 56, from which we have quoted, relates to employés of the board of education. Hogan v. Board of Education, N. Y., supra. The board of education may appoint such officers, clerks, or subordinates in its administration service as it may deem necessary (Greater New York Charter, § 1067), but such power is subject to reasonable regulation and control in behalf of the city. Section 226 of the Greater New York Charter expressly provides that: The budget "shall be prepared in such detail as to the titles of appropriations, the terms and conditions, not inconsistent with law, under which the same may be expended." Under that provision of the charter the board of estimate and apportionment and the board of aldermen may prescribe reasonable terms and conditions on which the amounts provided by the budget can be expended. People ex rel. Plancon v. Prendergast, 219 N. Y. 252, 114 N. E. 433, handed down herewith. A resolution was passed by the board of estimate and apportionment and adopted by the board of aldermen in connection with the appropriation and budget of 1915, which provided: "That this, the budget of the city of New York, as hereby made in pursuance of section We are of the opinion that the board of education is bound by the limitations on the appropriations so far as it affects the relator and that the comptroller should not be required to prove and audit the supplemental payroll. People ex rel. Plancon v. Prendergast, supra. The order should be reversed and the application for writ of mandamus denied, with costs in all courts. HISCOCK, CUDDEBACK, HOGAN, CAR- (185 Ind. 713) HOUCK et al. v. McCOY. (No. 22758.) Under Supreme Court rule 22 (55 N. E. v), requiring appellant's brief to contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on as supporting them, where appellants relied for reversal upon nine errors, assigned, and the portions of the brief designated as points and authorities contained numerous propositions without any attempt to classify them under various heads, there was nothing for review, especially where, after the omission was pointed out, appellants made no effort to amend, nor contention that there was a good faith effort to comply with the rule. [Ed. Note.-For other cases, see Appeal_and Error, Cent. Dig. § 3096; Dec. Dig. 761.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |