text:
    In the Matter of Herbert D. Warrington, As Committee of Elizabeth Warrington, Respondent. State of New York, Appellant. Francis J. Mulligan, Public Administrator of New York County, as Administrator of the Estate of George H. Pierre, Deceased, Appellant, v. State of New York, Respondent.
    Argued April 4, 1951;
    decided July 11, 1951.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for State of New York, appellant in first above-entitled proceeding.
    I. “ Waived upon the trial ” means that the report cannot be obtained earlier, even by a person competent to waive. (Matter of Coleman, 111 N. Y. 220; Holden v. Metropolitan Life Ins. Co., 165 N. Y. 13; Clifford v. Denver & R. G. R. R. Co., 188 N. Y. 349; People v. Bloom, 193 N. Y. 1; Capron v. Douglass, 193 N. Y. 11; Speck v. International Ry. Co., 133 App. Div. 802; Woernley v. Electromatic Typewriters, Inc., 271 N. Y. 228; Lorde v. Guardian Life

      Ins. Co., 252 App. Div. 646; Greff v. Havens, 186 Misc. 914; Westphal v. State of New York, 191 Misc. 688; Kinbacher v. Schneider, 194 Misc. 969.) II. The order was unauthorized by the Court of Claims Act. (Di Laura v. State of New York, 275 App. Div. 639; Thomas v. State of New York, 197 Misc. 288; Farrell v. State of New York, 276 App. Div. 1051; Matter of Lee v. State of New York, 183 Misc. 615; Mulligan v. State of New York, 277 App. Div. 437.)

      Samuel L. Greenberg and Erwin Greenberg for respondent in first above-entitled proceeding.
    Application made by the committee of incompetent on behalf of said incompetent and in her interest pursuant to subdivision 9 of section 34 of the Mental Hygiene Law is a sufficient waiver of the privilege within the purview of section 354 of the Civil Practice Act. (Steinberg v. New York Life Ins. Co., 263 N. Y. 45; Waldron v. State of New York, 193 Misc. 113; Zimmer v. Third Ave. R. R. Co., 36 App. Div. 265; Trieber v. New York & Queens Co. Ry. Co., 149 App. Div. 804; Southard v. Rexford, 6 Cow. 254; Speck v. International Ry. Co., 133 App. Div. 802; Clifford v. Denver & R. G. R. R. Co., 188 N. Y. 349; Munzer v. Blaisdell, 183 Misc. 773, 269 App. Div. 970; Scolavino v. State of New York, 187 Misc. 253, 271 App. Div. 618, 297 N. Y. 460.)

      Hyman H. Smith, Jacob D. Fuchsberg, William Cohen and Bernard I. Schérer for appellant in second above-entitled action.
    Application by an administrator on behalf of his intestate pursuant to section 20 and subdivision 9 of section 34 of the Mental Hygiene Law is a good and sufficient waiver within' the provisions of section 354 of the Civil Practice Act. (Clifford v. Denver & R. G. R. R. Co., 188 N. Y. 349; Matter of Coleman, 111 N. Y. 220; Hoyt v. Hoyt, 112 N. Y. 493; Masterson v. Boyce, 53 Hun 630; Marx v. Manhattan Ry. Co., 56 Hun 575; Fortgang v. Alpert, 256 App. Div. 949; Matter of Ackerman, 163 Misc. 624; Waldron v. State of New York, 195 Misc. 278; Matter of Grabau, 193 Misc. 859; Matter of Failla, 197 Misc. 673; Thomas v. State of New York, 197 Misc. 288; Matter of Lee v. State of New York, 183 Misc. 615.)

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Henry S. Manley of counsel), for State of New York, respondent in second above-entitled action.
    I. The order of the Court of Claims was erroneous because it might result in disclosing “ confidential communications ”. II. “ Waived upon the trial ” means that the report cannot be obtained earlier, even by a person competent to waive. III. The order was unauthorized by the Court of Claims Act.
   Lewis, J.

The double title which prefaces this opinion identifies two cases which were argued together. A brief statement of the facts involved will pose the problem each appeal presents— problems similar but not identical.

In Matter of Warrington — the petitioner is the committee of an incompetent person who, in September, 1945, while confined as a patient at Kings Park State Hospital fell to the ground below from a fourth-floor doorway in one of the hospital buildings, thereby sustaining injuries alleged to be permanent. To ascertain the circumstances surrounding the incompetent’s injury and to determine whether the State or any of its employees were guilty of actionable negligence, the committee applied to the Court of Claims for an order, pursuant to section 20 and section 34, subdivision 9, of the Mental Hygiene Law permitting him to inspect the hospital records relating to her case. The facts sought are referable to the incompetent’s physical and mental condition during her stay at the hospital; the care, supervision and surveillance afforded her, and the facts surrounding the occurrence of the accident which caused her injuries. A Judge of the Court of Claims granted the committee’s application. Thereafter, upon appeal by the State, the Appellate Division, Third Department, unanimously affirmed that order and granted the State’s motion for leave to appeal to this court upon the following certified question: “Is the order from which the appeal was taken one that the Court of Claims was authorized to make?”

In Mulligan v. State of New York — the petitioner is a public administrator engaged in the administration of the estate of George H. Pierre, deceased, who is alleged to have died as a result of a fall while a patient at Kings Park State Hospital. The public administrator has filed a claim against the State alleging that the fall which caused decedent’s death was due to negligence of the State in failing properly to supervise the decedent. When the public administrator applied to the Court of Claims for an order pursuant to section 20 and section 34, subdivision 9, of the Mental Hygiene Law permitting him to inspect the hospital records of the decedent to enable him properly to prepare and present proof in support of a claim against the State, a Judge of the Court of Claims — as in the Warrington case — granted the administrator’s application. However, in the Mulligan case the Appellate Division, upon appeal'by the State, reversed on the law the order of the Court of Claims, and granted leave to appeal to this court upon the following certified question: Is the order from which the appeal was taken one that the Court of Claims was authorized to make? ”

We shall consider first the validity of the order made by a Judge of the Court of Claims in Matter of Warrington.

Insofar as it is here material section 20 and section 34, subdivision 9, of the Mental Hygiene Law provide as follows:

“ § 20. Record of patients and inmates. The department of mental hygiene shall keep in its office, and accessible only to the commissioner, medical director and such other officers and subordinates of the department as the commissioner may designate, except by the consent of the commissioner or an order of a judge of a court of record, a record of each patient admitted to an institution within the department, and also the records, papers and reports of examinations of others made by any division or bureau of the department. The record of each patient admitted to any institution within the department shall show:
“ 1. The name, residence, sex, age, nativity, occupation, civil condition and date of admission of every patient in custody.in the several institutions for the care and treatment of mentally i'll, epileptic and mental defective persons in the state, and the name and residence of the person making the petition for certification, if any, and of the persons signing the medical certificate, and of the judge making the order of certification, if there be a certification.
‘12. The date of the discharge of each patient from such institution, whether recovered, much improved, improved or unimproved, and to whose care committed.”
‘‘ § 34. Powers and duties of director. The director of each state institution in the department shall he its chief executive officer, and in his absence or sickness, the associate director, an assistant director or other officer designated by the director shall perform the duties * * * of the- director. * ® * Subject to such powers of the commissioner and such rules, he shall: * * *
“ 9. Keep a record, in which he shall cause to be entered at the time of reception of any patient, his name, residence and occupation, and the date of such reception * * *.
“ The director within three days after the reception of a patient, shall make, or cause to be made a descriptive record of such case. He shall also make or cause to be made entries from time to time of the mental state, bodily condition and medical treatment of such patient during the time such patient remains under his care, and in the event of the discharge or death of such person, he shall state in such case record the circumstances thereof, and make such other entries at such intervals of time and in such form as may be required by the commissioner. Such record shall be accessible only to the director and such officers and subordinates of the institution as he may 'designate and to the commissioner and his representatives, except on the consent of the commissioner or an order of a judge of a court of record.” (Emphasis supplied.)

We agree with the ruling by the Appellate Division that in the circumstances disclosed by the record before us, the opposition by the State to efforts by the committee to inspect hospital records relating to the incompetent on the ground that the medical history of the incompetent constitutes a communication which is privileged from disclosure to the incompetent’s own committee, is without merit. At common law no privilege was attached to physician-patient communications. (See 8 Wigmore on Evidence, pp. 802-803; 1 Greenleaf on Evidence [15th ed.], p. 335ff.) The privilege was first introduced by statute in New York in 1828 (2 Rev. Stat. of N. Y. [1828], p. 406, part III, ch. VII, tit. III, art. 8, § 73) to the end that a patient might disclose details of his ailment to the physician without fear that the physician might be compelled to divulge his knowledge upon some future occasion. (See Edington v. Mutual Life Ins. Co., 67 N. Y. 185, 194.) It is clear that the privilege is that of the patient and that —at least to a degree — the State objects to the present application not in the interests of the patient, but to protect itself.

However, it has been held that at the trial any party to the action may object to evidence which comes within the prohibition of the statute, and it remains for the patient to waive the privilege. See Westover v. Aetna Life Ins. Co. (99 N. Y. 56, 59-60). That principle, however, does not authorize a physician or any agency acting in his behalf — as is the State in the present case — to decline to inform the patient in private conference of steps taken to effect the cure which the physician has undertaken. For this purpose, we are able to conceive of no reason why the committee of an incompetent patient, acting to further the interests of his ward, should be treated in a manner different from the patient himself. We are not here concerned with evidence offered upon a trial or examination. The transaction involved is a private one between a State hospital and the committee of one of its patients. Article 81 of the Civil Practice Act vests in the Supreme Court power relative to the care and custody of incompetent persons, which power must be exercised by means of a committee. (Civ. Prac. Act, §§ 1356-1358.) To prevent such committee from securing information to enable it properly to carry out its function to preserve the rights and interests of the incompetent would, in our view, be a result unwarranted by law.

Moreover, section 20 and section 34, subdivision 9, of the Mental Hygiene Law, quoted above, clearly indicate that hospital records pertaining to an incompetent shall be accessible on “ an order of a judge of a court of record.” The order of a Judge of the Court of Claims comes within that statutory provision and the State does not assert that there has been an abuse of the discretion vested in the Court of Claims as a court of record. (Judiciary Law, § 2, subd. 5.)

In his brief the Attorney-General argues that the Court of Claims Act does not authorize a discovery or inspection, and that section 34, subdivision 9, of the Mental Hygiene Law was intended to be used primarily for medical purposes, such as where a committee wishes a consulting psychiatrist to have access to the incompetent’s record. It is also suggested that records in a State hospital may be available for purposes of litigation, but that the provisions of the Mental Hygiene Law were not intended to expand the resources of litigation made available under the practice acts and specifically the Court of Claims Act. We find no such limitation in the statute; nor do we find any basis in law or fact for such a limitation. In that connection a decisive fact is that the orders in the Warrington and Mulligan cases were not made under provisions of the Court of Claims Act but in each instance were made pursuant to section 20 and section 34, subdivision 9, of the Mental Hygiene Law.

Our conclusion is that in the circumstances disclosed by the record in Matter of Warrington the order by a Judge of the Court of Claims, acting within the power vested in him as “ a judge of a court of record ” by section 20 and section 34, subdivision 9, of the Mental Hygiene Law, was a proper exercise of the judicial function.

In Mulligan v. State of New York, the Appellate Division — contrary to its decision in Matter of Warrington — reversed the order which permitted the public administrator to inspect the decedent’s hospital record for the purpose of discovering evidence of negligence, if any there was, on the part of the State. In so deciding the theory of the Appellate Division was that, since the patient Pierre — whose estate is here involved — is now dead, a situation is presented unlike that prevailing in Matter of Warrington where the following italicized portion of section 354 of the Civil Practice Act must be given effect:

§ 354. Application of sections relating to confidential communications. The last three sections apply to any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. But a physician or surgeon or a professional or registered nurse, upon a trial or examination, may disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section three hundred and fifty-two have been expressly waived on such trial or examination by the personal representatives of the deceased patient * * *. But such attorney or his employees, upon a trial or examination, shall not be permitted to disclose any confidential communications which would tend to disgrace the memory of the decedent. The waivers herein provided for must be made in open court, on the trial of the action or proceeding, and a paper executed by a party prior to the trial providing for such waiver shall be insufficient as such a waiver. But the attorneys for the respective parties, prior to the trial, may stipulate for such waiver, and the same shall be sufficient therefor.”

The excerpt from section 354, last quoted above, refers solely to communications had with a decedent. It was, therefore, not applicable in Matter of Warrington.

The provisions of section 352 of the Civil Practice Act to which reference is made in section 354, quoted (supra), are as follows:

‘ ‘ § 352. Physicians, dentists and nurses not to disclose professional information. A person duly authorized to practice physic or surgery, or dentistry, or a professional or registered nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity, * * * unless, where the patient is a child under the age of sixteen, the information so acquired indicates that the patient has been the victim or- subject of a crime, in which case the physician, dentist or nurses may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is a subject of inquiry.”

It is the State’s position in the Mulligan case that the State hospital records which the claimant seeks to examine are privileged and that the privilege can only be waived by the personal representative of the decedent on the trial of any claim. In support of that position the Attorney-General argues that the provisions of section 20 and section 34, subdivision 9, of the Mental Hygiene Law, quoted (supra) — each of which statutes, as we have seen, makes the record of an inmate of a State hospital accessible upon “ an order of a judge of a court of record ” — must be read with sections 354 and 352 of the Civil Practice Act. (Quoted supra.)

We cannot agree with that argument which, reinforced by-reference to our decision in Matter of City Council of City of N. Y. v. Goldwater (284 N. Y. 296), appears to have convinced the Appellate Division. We do not think the rule of the Goldwater case bears upon our present problem. That case arose in the course of a councilmanic investigation designed to examine into charges of negligence and maladministration in the treatment of patients at Lincoln Hospital in the city of New York. The problem there presented arose when investigators sought by subpoena duces tecum to examine records of Lincoln Hospital including case records of certain patients. Unlike the two cases now before us, no order was sought in the Goldwater case under section 20 and section 34, subdivision 9, of the Mental Hygiene Law. Indeed at the end of his prevailing opinion Chief Judge Lehman was careful to state (p. 302): We now hold that the statutory privilege may be asserted whenever the power of a court is invoked in manner authorised by the provisions of article 33 of the Civil Practice Act to compel a witness to disclose information which under other provisions of the same article he is forbidden to disclose.” (Emphasis supplied.) The rule of the Goldwater case is overextended when its application is given effect in cases like the two at hand, neither of which falls within the provisions of article 33 of the Civil Practice Act but on the contrary involve in each instance an application to a judge of a court of record for an order which, when granted, contained the recital that it was done ‘ ‘ pursuant to sections 20 and 34, subdivision 9, of the Mental Hygiene Law ”.

If, in the Mulligan case, we affirm the Appellate Division order of reversal — which in effect denied the administrator’s application for an order of the Court of Claims permitting an examination of a State hospital’s record — we would thereby disregard two statutes (Mental Hygiene Law, §§ 20, 34, subd. 9) which had their origin at least fifty-five years ago (L. 1896, ch. 545, § 13) and which the Legislature has since seen fit to carry into the Mental Hygiene Law, making State hospital records accessible upon an order of a judge of a court of record ”. (See L. 1927, ch. 426, § 20; L. 1946, ch. 472.) If the Legislature had since been disposed to require in some circumstances that section 20 and section 34, subdivision 9, of the Mental Hygiene Law be read with sections 352 and 354 of the Civil Practice Act, it would have been a simple matter to have enacted legislation to accomplish that end. Having failed to point out any such legislation we think the order of the Appellate Division in the Mulligan case was error.

The position taken by the State in both Matter of Warrington and the Mulligan case would, in our opinion, unjustly hamper well-intentioned efforts made in behalf of an incompetent patient injured in a State hospital, to ascertain from hospital records the facts, if any, by which actionable fault of State agents may be proved. Upon that subject legislative history makes it clear that since 1896 the Legislature has been quite willing to leave to the discretion of “ a judge of a court of record ” the inquiry whether the end to be achieved in a given case justifies the means afforded by the provisions of the Mental Hygiene Law cited above.

In Matter of Warrington (State of New York), the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

In Mulligan v. State of New York, the order of the Appellate Division should be reversed, and that of the Court of Claims affirmed, with costs in this court and in the Appellate Division, and the certified question answered in the affirmative.

Loughran, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

In Matter of Warrington (State of New York): Order affirmed, etc.

In Mulligan v. State of New York: Ordered accordingly.


source: Caselaw Access Project

author: Froessel, J. Fuld, J.

license: Public Domain

text:
    In the Matter of Alexander Murray et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, against Joseph A. McNamara et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued April 10, 1951;
    decided July 11, 1951.

      Charles Haydon for appellants.
    I. The certification and appointment as paver, of persons without the required experience, constituted an unlawful preference, a violation of the commission’s rules, and was illegal. (Matter of Mendelson v. Finegan, 168 Misc. 102, 253 App. Div. 709, 278 N. Y. 568; Railway Mail Assn. v. Murphy, 180 Misc. 868; People ex rel. Lee v. Gleason, 32 App. Div. 357; Matter of Ackerman v. Kern, 281 N. Y. 87; Matter of Clifford v. Kern, 171 Misc. 512; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Matter of Thacher v. Catherwood, 263 App. Div. 484; Matter of Perpente v. Moss, 293 N. Y. 325; Matter of Kaney v. New York State Civil Service Comm., 190 Misc. 944, 273 App. Div. 1054, 298 N. Y. 707.) II. Appointments from the list for the position of rammer were forbidden while the payers’ list existed. (People ex rel. Finnegan v. McBride, 104 Misc. 153; Matter of Henry Hudson Parkway Authority v. Kern, 167 Misc. 699, 255 App. Div. 770; People ex rel. Sweeney v. Rice, 279 N. Y. 70; Story v. Craig, 231 N. Y. 33.) III. The Constitution and the Civil Service Law prevent promotion of persons in the labor class, and the particular laborers sought to be promoted to rammer did not have the necessary preliminary requirements. (Matter of Mendelson v. Kern, 278 N. Y. 568; Matter of Cornehl v. Kern, 260 App. Div. 35, 285 N. Y. 777; Walters v. City of New York, 119 App. Div. 464; Matter of Chiaravalle v. Kern, 285 N. Y. 778.)

      John P. McGrath, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for respondents.
    I. The commission’s determination that persons on the paver list were qualified and possessed the preliminary minimum experience requirements for the paver examination was not illegal or arbitrary or beyond the scope of its discretion, but finds support in the record. The requirements of five years’ experience as a paver or a satisfactory equivalent of a nature to qualify for the duties of the position was reasonable and definite. (People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Strauss v. Hannig, 256 App. Div. 662, 281 N. Y. 612; Matter of Laverty v. Finegan, 249 App. Div. 411, 275 N. Y. 555; Matter of Gauthier v. Rice, 246 App. Div. 179.) II. The Constitution, the Civil Service Law, and the rules of the commission require, where practicable, the filling of vacancies in the civil service by promotion examinations from among persons holding positions in a lower grade or class — including the labor class — in the department where the vacancy exists, notwithstanding the existence of an open competitive list for the same or related positions. The promotion examination given to laborers in the borough presidents’ offices for the position of rammer in the same office was accordingly proper. (Hurley v. Board of Educ. of City of N. Y., 270 N. Y. 275; Matter of Cornehl v. Kern, 260 App. Div. 35, 285 N. Y. 777; Matter of Pollak v. Conway, 276 App. Div. 435; Matter of Ward v. Kern, 259 App. Div. 717, 284 N. Y. 698; Matter of Forman v. Kern, 257 App. Div. 946, 282 N. Y. 583; Matter of Lennon v. Delaney, 263 App. Div. 568; Matter of Social Investigator Eligibles Assn. v. Taylor, 268 N. Y. 233; Wood v. City of New York, 274 N. Y. 155.)
   Froessel, J.

Petitioners-appellants, two of the persons who passed an open competitive examination for the position of paver, seek, in this article 78 proceeding, an order directing respondents, who constitute the Municipal Civil Service Commission of the City of New York, (1) to remove certain persons from the paver list on the ground that such persons did not have five years’ satisfactory experience as paver or a satisfactory equivalent, and to nullify all certifications of such persons for the position; (2) to nullify all proceedings had with reference to a promotion examination for rammer; and (3) to certify as eligible for the position of rammer the list of eligibles for the position of paver as amended by the removal of the assertedly unqualified persons.

We agree with both lower courts that appellants did not make a sufficient showing of unreasonable, arbitrary or capricious conduct by respondents as to the paver examination and the resultant eligible list. The requirement of a “ satisfactory equivalent ” in lieu of five years’ satisfactory experience as a paver is not, under the circumstances here presented, so vague and indefinite as to he unconstitutional. We have not only recognized the concept of satisfactory equivalents, but have held that requirements which exclude this concept may be illegal (see Matter of Cowen v. Reavy, 283 N. Y. 232, 238).

It is well settled by a long line of decisions in this court that “ In the absence of some express limitation the action of the commission in fixing such tests must stand, unless it is so clearly irrelevant and unreasonable as to be palpably indefensible and improper. If any fair, reasonable argument may be made to sustain the action the courts should not interfere, even though they may differ from the commission as to its advisability ” (People ex rel. Moriarty v. Creelman, 206 N. Y. 570, 576; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Strauss v. Hannig, 256 App. Div. 662, affd. 281 N. Y. 612; Matter of Laverty v. Finegan, 249 App. Div. 411, affd. 275 N. Y. 555; Matter of Cowen v. Reavy, supra, and cases cited therein at p. 237).

We are, however, of the view that respondents acted contrary to law, albeit in good faith, in giving the rammer examination as a promotion examination open to permanent employees in the offices of the presidents of the boroughs of Manhattan, Bronx, Brooklyn and Queens who were employed in the position of “ Laborer ”. Section 16 of the Civil Service Law provides:

1. Filling vacancies by promotion. Vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists. * * *
“ 8. Limitation upon promotion, transfer or reinstatement. No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specifically authorized by the state or municipal commission, nor shall a person be promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination and is eligible for appointment to such higher position.” (Italics supplied.)

There are four classes over which respondents have jurisdiction : exempt, competitive, noncompetitive and labor (Civil Service Law, § 12; N. Y. City Mun. Civ. Serv. Comm. Rules [1947], rule I, subd. 1, p. 1). The position of rammer is classified by respondents in The Skilled Craftsman and Operative Service ” part of the competitive class (Rules, rule X, part 38, pp. 88, 90-91). The position of laborer is an entirely different class, namely, the labor class, which is wholly ungraded (Rules, rule X, p. 119). Within the labor class are twenty-five different types of labor, including bakers, butchers, farmers, and a variety of other occupations; those workers in the list who may be found in a borough president’s office are cleaners (men and women), laborers, porters, sewer cleaners, and window cleaners ; there is no reference to payers or rammers.

As we read the pertinent portion of section 16 above quoted, promotion examinations may be held only where the persons sought to be promoted have passed an open competitive examination for a lower grade in the type of work involved in the position to which it is sought to promote them, and paragraph 11 of section X of rule V (Rules, p. 24), which was apparently designed to implement the statute, but used the words “ lower but corresponding character ” instead of lower grade ”, as -the statute prescribes, may not be read to the contrary. (Matter of Mendelson v. Finegan, 168 Misc. 102, affd. 253 App. Div. 709, affd. 278 N. Y. 568; Weissberg, Civil Service Rights [1950], p. 47, § 72; Collier on Civil Service, pp. 99-100; Chief Judge Pound’s construction as a member of the State Civil Service Commission (N. Y. Assem. Doc., 1902, No. 56, p. 263 et seq.)

In the Mendelson case (supra), the promotions in question were from law clerk to law assistant, all within the same department and the same class — competitive — and we affirmed the courts below in holding that section 16 of the Civil Service Law cannot be construed to permit such promotions where the persons sought to be promoted had not on original entrance into the service taken a competitive examination which in any way tested their skill for the type of work to which it was sought to promote them. Here the same principle applies, but with greater force, for the laborers never took an open competitive examination which even remotely tested their skill as rammers — indeed, their occupational designations indicate the nature of their work and qualifications; and, since the position of rammer is classified in a skilled part of the competitive class, whereas the position of laborer is in a wholly different class and ungraded, ‘ ‘ we must accept as a fact that the examination for these positions involves essential tests and qualifications differing from each other.” (Matter of O’Connell v. Clark, 200 App. Div. 606, 609.) 11 It has been the generally accepted doctrine throughout the State that as to the positions of laborers * * * it was not practicable to employ competitive examinations in order to determine fitness ” (People ex rel. Langdon v. Dalton, 49 App. Div. 71, 74, affd. 163 N. Y. 556). Matter of Williams v. Morton (297 N. Y. 328), cited by Judge Fuld, is not helpful to his position, for there we enjoined the assignment of a physician to a new post in the medical service at almost twice his then salary without any examination whatsoever.

If by the Mendelson decision graded law clerks who took a competitive examination for that position were not eligible for promotion to graded law assistants, how can we now hold that ungraded laborers who never took any open competitive examination at all are eligible for promotion to rammers, which the Civil Service Commission places in the Skilled Craftsman and Operative Service, and which position pays one and one halftimes, more or less, the compensation fixed for laborers 1 To do so would require us to overrule the Mendelson case. Accordingly, we conclude that the laborers were not eligible for promotion to rammer. This is not to say that they may not qualify, but they must do so by proving their capabilities in open competition with other applicants.

We are not unmindful of the policy manifested in subdivision 1 of section 16 of the Civil Service Law of filling vacancies ‘1 as far as practicable, by promotion from among persons holding positions in a lower grade ’ ’; and of the wisdom of that policy in tending to raise the morale of government employees and thus promote efficiency. However, under our Constitution, article V, section 6, the right to appointment is entitled to the same protection as the right to promotion, and under the statute (Civil Service Law, § 16, subd. 8), promotion examinations may be held only where the employees sought to be promoted have passed an open competitive examination for a lower grade in the type of work involved in the position to which promotion is sought.

Since no list for rammer has been legally created, “ there is necessity to resort to a ‘ most nearly appropriate ’ list ” (Matter of Friend v. Valentine, 261 App. Div. 163, 170, affd. 285 N. Y. 764, motion for reargument denied 285 N. Y. 853; Civil Service Law, § 14, subd. 8; see, also, Matter of Ackerman v. Kern, 281 N. Y. 87). Upon this record, it is clear that the paver list is the existing eligible list most nearly appropriate from which to make appointments to rammer, and therefore appointments to that position should have been made from it, and should continue to be made from it, at least until a proper rammer’s list is promulgated.

Respondents argue the Statute of Limitations and loches with respect to appellants’ claim seeking nullification of the rammer examination. However, the rammer list was first promulgated on March 22, 1949, and until respondents made the first appointment therefrom on May 1, 1949, appellants were not aggrieved, for the mere promulgation of the rammer list and the holding of the examination at earlier dates had produced no harm to them (see Matter of Rumack v. McNamara, 195 Misc. 84, 88, 89, affd. 275 App. Div. 805, motion for leave to appeal denied 299 N. Y. 800; Matter of Thomas v. Kern, 280 N. Y. 236, 244, supra; Matter of O’Connell v. Kern, 287 N. Y. 297, 301). Inasmuch as the present proceeding was instituted on June 3, 1949, it was timely brought, and appellants were not guilty of loches.

It follows that Special Term was correct in refusing to remove any eligibles from the paver list, in ordering the nullification of all proceedings had with reference to the promotion examination for rammer, and in directing that respondents certify as eligible for the position of rammer only persons appearing on the paver list, but its order should be modified as hereinafter provided.

The order of the Appellate Division, insofar as it reverses the order of Special Term, should be reversed and otherwise affirmed, and the order of Special Term, insofar as reversed by the order of the Appellate Division, should be modified by adding to its fifth ordering clause before the semicolon the words: “until a proper rammers’ list is promulgated”, and, as so modified, affirmed, with one bill of costs to the appellants.

Fuld, J.

(dissenting). The Municipal Civil Service Commission of the City of New York determined that a laborer, who, among his other duties, assists rammers and payers in the construction and repair of city streets, is eligible for promotion to the position of rammer. I believe that determination — which has been upheld by the Appellate Division — eminently correct. I cannot agree with the decision, now being made by the court, that either the Constitution or the Civil Service Law makes impossible the promotion of an employee in the labor class to a position in the competitive class.

The sole test for promotion as prescribed by the Constitution of this state (art. V, § 6) is the practicability of such promotion, and not the classification and grading of the positions involved, for differences in classification or grading do not establish that promotion is not practicable. The legislature has implemented the constitutional provision by providing that “ Vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists ” (Civil Service Law, § 16, subd. 1). That provision must be read together with two other subdivisions of the same section: “ For the purposes of this section ”, subdivision 7 specifically recites, “ an increase in the salary or other compensation of any person holding an office or position * * * beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion ”, and subdivision 8 expressly imposes certain limitations upon promotion “ from a position in one class to a position in another class".

The rules of the Municipal Civil Service Commission of the City of New York establish grades for some positions in the competitive class, but not for positions in the labor class. The position of rammer is classified in the competitive class in Part 38, entitled “ The Skilled Craftsman and Operative Service ”, which provides that “ The compensation at the grades of positions in this part is fixed at the prevailing rate of wages for each of them as determined by law ” — that is, by the procedure prescribed in section 220 of the Labor Law. It is not disputed that the laborer’s compensation is less than that of rammer.

The first question, therefore, that we must resolve is whether the position of laborer is 11 in a lower grade ’ ’ than that of rammer — and the answer seems clear. The commission has defined “ grade ” as meaning “ the order or standing of a position with reference to the compensation attaching to it ” (N. Y. City Mun. Civ. Serv. Comm. Rules [1947], rule I, subd. 13). By that definition, the position of laborer is — because the pay is less — necessarily in a lower grade than that of rammer.

Where positions involving the same general type of work can be differentiated on the basis of amount of skill, responsibility and compensation, they are deemed to be in different grades for promotion purposes, even in the absence of formal grades established by civil service commissions. Our decision in Matter of Williams v. Morton (297 N. Y. 328) implicitly holds that a graded position for which no maximum salary is prescribed — in effect, an ungraded position as to maximum salary — is, nevertheless, for purposes of promotion, in a lower grade than a newly created supervisory position. That case involved an examining physician, Grade 4, salary range “ $3,000 per annum and over.” Grade 4 was the highest competitive grade of the medical service. An employee in Grade 4, salary $4,000 a year for part-time service, was detailed or assigned to take charge of the medical staff at $7,500 a year. In characterizing such action as illegal, Chief Judge Loughbau, writing for the court, declared that “ the State Constitution (art. V, § 6) * * * clearly requires all promotions as well as all appointments to be made for merit and fitness after determination thereof by competitive examination, unless such an examination would be futile ” (p. 333), and went on to say Such an advance in income and in professional responsibility and prestige is certainly a ‘ promotion ’ in every fair sense of that word ” (p. 334).

Nor does anything turn upon the fact that the Williams case involved a promotion from one position in the competitive class to another position in the competitive class. If positions in the competitive class may be in grades relative to each other for promotion purposes — even in the absence of formal grading by civil service commissions (see, also, Story v. Craig, 231 N. Y. 33, 38-39) —there is no reason why positions in the labor class may not be similarly regarded for such promotion purposes. Certainly, the commission did not regard its failure to establish formal grades for positions in the labor class as a bar to the promotion of laborers to the position of rammer in the . competitive class, for it has provided for such promotion in its rules, despite the absence of grades for positions in the . labor class.

Indisputably, the legislature, by enacting section 16, subdivision 8, of the Civil Service Law, contemplated promotion “ from a position in one class to a position in another class ”, for that is the very language of the statute itself. However, to ' effect such a promotion, it is specified, two conditions must be met.

The first condition is that such a promotion must be “ specifically authorized by the state or municipal commission ”. That specification was satisfied in the case before us. Here, by virtue of paragraph 11 of section X of rule V of the Rules of the Municipal Civil Service Commission — accorded the force and’effect of law (Civil Service Law, § 6) — the commission was empowered to “ extend eligibility for promotion to positions in the Competitive Class to employees in the Labor Class who have for three years next immediately preceding the examination performed work of a lower but corresponding character in such class.” While that provision does not explicitly sanction the promotion of laborers to rammers, the commission’s action in declaring laborers eligible to compete in the examination for promotion to rammer constitutes the essential authorization for the promotion of any laborer who passes the examination and is subsequently certified for promotion.

The second condition — which must be satisfied before a promotion from a position in one class to a position in another class is sanctioned — is that no person shall be promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an examination-involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination and is eligible for appointment to such higher position.” (Emphasis supplied.)

The words, ££ passed the examination ”, refer to the examination taken by the employee whereby he qualified for his original appointment, as both Chief Judge Pound, while a member of the State Civil Service Commission (N. Y. Assem. Doc. [1902], No. 56, p. 263 et seq.), and Collier, in his work on Civil Service (pp. 99-100), have stated. Judge Pound, for instance, wrote that££ the words £ passed the examination ’ refer to positions in the non-competitive class, ’ ’ (p. 264) clearly envisaging thereby the qualifying noncompetitive examination which is administered to applicants for appointment in the noncompetitive class. (See Matter of Merriweather v. Roberts, 268 N. Y. 12; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435.) There is, of course, no doubt that qualifying noncompetitive examinations may be, and usually are, administered to applicants for appointment in the labor class. (Cf. Burke v. Holtzmann, 110 App. Div. 564, 566; People ex rel. Langdon v. Dalton, 49 App. Div. 71, 74, affd. 163 N. Y. 556; Matter of Angelora v. Kern, 177 Misc. 803, 804, affd. 262 App. Div. 1018.) Thus, in the Angelora case (supra, 177 Misc. 803, affd. 262 App. Div. 1018), applicants for the position of auto truck driver in the labor class were given a qualifying noncompetitive examination which consisted of a medical, physical, practical and literary test. It follows, therefore, that the words,£ 1 passed the examination ”, apply to employees in the labor class as well as to employees in the noncompetitive class. Consequently, an employee in the labor class has ££ passed the examination ” prescribed by the statute and may qualify for promotion in the competitive class, provided that he 1 ‘ is eligible for appointment to such higher position.” Such eligibility is shown by passing an examination for the higher position and by attaining a place upon the eligible list.

The balance of the subdivision —£ £ nor shall a person be promoted or transferred to a position for original entrance to which there is required # * * an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person” — further limits promotions to situations where the original examination and the promotion examination both involve similar essential tests and qualifications, although the promotion examination requires higher tests or qualifications. Transfers, however, are limited to situations where the essential tests or qualifications are similar but not higher. Every promotion, by definition, involves essential tests and qualifications higher than those prescribed for original appointment to a lower position with similar duties, whereas a transfer contemplates a change from one position to another involving similar but not higher essential tests, qualifications and duties. This difference between promotion and transfer precludes the application of identical limitations to both, as the legislature recognized by speaking in the disjunctive of a person “ promoted or transferred ’ ’ and of ‘ essential tests or qualifications different from or higher than those prescribed for original entrance to the position held by such person ’ \ Thus, language confirms what reason requires: a promotion is prohibited only if it involves different ” tests or qualifications. Such a construction of the statute permits promotions to positions involving similar but higher essential tests and qualifications, while a contrary construction would render all promotions impossible, since, as we have seen, every promotion, by definition, involves higher essential tests and qualifications than those prescribed for a lower position with similar duties.

The determinative factor, then, is whether the two positions — the one occupied and the one to which promotion is sought — involve essentially similar tests and qualifications, and not whether they are in the same or different classifications. That this is so is borne out and confirmed by the reasoning in Matter of Mendels on v. Finegan (168 Misc. 102, affd. 253 App. Div. 709, affd. 278 N. Y. 568), the very case relied upon by Judge Froessel. The promotion examination in that case was held improper because the original examination for the “ lower ” position of clerk did not test for the qualifications that were in any way similar to those prescribed for the “ higher ” position of law assistant. More specifically, the original examination for clerk required no legal education and did not test for capacity to perform any legal duties whatever, while the examination' for law assistant not only required legal education, but tested for capacity to perform legal duties.

The fact that the position of laborer is classified in the labor class and ungraded, while the position of rammer is classified in the competitive class, does not require us to accept as a fact that the examination for these positions involved essential tests and qualifications different from each other. Matter of O’Connell v. Clark (200 App. Div. 606) —which Judge Froessel cites — is not to the contrary, for the court, after observing that differences in classification required an assumption of differences in the essential tests and qualification, went on to point out actual differences in the physical tests, age limitations and duties of the positions there involved. If a difference in classification raises a conclusive presumption of differences in essential tests and qualifications, then, of course, there could never be any promotion from a position in the labor class to a position in the competitive class. And, if that were so, the statutory provision limiting promotion “ from a position in one class to a position in another class ” (Civil Service Law, § 16, subd. 8), would, quite obviously, be not only superfluous but meaningless. It seems to me that comparison of tests and of qualifications for promotion to a position in the competitive class may be made in any case, and that promotion should be allowed Avhenever such comparison shows similarity in essential tests and qualifications, despite differences in classification or grading. (Cf. Kelty v. Kaplan, 205 App. Div. 487.)

Our query, therefore, must always be whether the examination given to the applicant and passed by him in qualifying for his current position tested for the same or similar qualifications that would be demanded of one filling the position to which promotion is sought. Similarity of work and qualifications, not identity of classification, is the standard and criterion.

Upon such a construction of the statute, the question arises Avhether the qualifying noncompetitive examination for a laborer involved essential tests and qualifications similar to — albeit lower than — those prescribed for the position of rammer. The commission determined this question in the affirmative. In the absence of any showing that the essential tests and qualifications for the positions of laborer and rammer are different and wholly unrelated, a court should not assume that they' are different, particularly since the commission implicitly found them to be similar under its rule V, section X, paragraph 11 •— which, as noted above, provides for promotions from the labor to the competitive class of employees who had been performing work of a lower but corresponding character ”.

In my view, therefore, petitioners’ application to annul the rammer promotion examination and the list resulting therefrom was properly denied by the Appellate Division, and its order should in all respects be affirmed.

Lewis, Conway and Dye, J J., concur with Froessel, J.; Fuld, J., dissents in opinion in which Loughran, Ch. J., and Desmond, J., concur.

Ordered accordingly. [See 303 N. Y. 804.]


author: Froessel, J.

text:
    Irving Mark et al., Appellants, v. Board of Higher Education of the City of New York, Respondent.
    Argued May 31, 1951;
    decided July 11, 1951.

      Benjamin M. Zelman for appellants.
    I. Plaintiffs were entitled to be transferred from the Brooklyn College schedules to the Moffat schedules. II. The practice and policy of defendant is inconsistent with defendant’s interpretation of the statute. (Matter of Adams v. Board of Higher Educ. of City of N. Y., 263 App. Div. 804, 288 N. Y. 652; Nelson v. Board of Higher Educ. of City of N. Y., 263 App. Div. 144, 288 N. Y. 649.) III. In the light of the history of teacher legislation and court decisions, it is unreasonable to assume that the Legislature intended to “ freeze ” illegal 1935 salaries for transfer purposes. Assuming, arguendo, that such was its intention, it was without power to divest plaintiffs of “ rights ” acquired and vested under the 1931 amendment to section 889 of the Education Law. (Zuckerbrod v. Board of Higher Educ. of City of N. Y., N. Y. L. J., Jan. 24, 1949, p. 283, col. 2, 276 App. Div. 752, 300 N. Y. 765; Wannerstrom v. Board of Higher Educ. of City of N. Y., N. Y. L. J., Apr. 13, 1949, p. 1329, col. 4, 276 App. Div. 752, 300 N. Y. 764; Greene v. Board of Higher Educ. of City of N. Y., N. Y. L. J., Feb. 6, 1950, p. 457, col. 1, 278 App. Div. 753; Matter of Putnam v. Marshall, 286 N. Y. 485; Nelson v. Board of Higher Educ. of City of N. Y., 263 App. Div. 144, 288 N. Y. 649; Cottrell v. Board of Educ. of City of N. Y., 293 N. Y. 792; Railroad Co-op. Bldg. & Loan Assn. v. Boston Bldg. Estates, 149 Misc. 349; People ex rel. Folk v. McNulty, 256 App. Div. 82, 279 N. Y. 563; Burch v. Newbury, 10 N. Y. 374.) IV. The defenses are insufficient in law. (Cottrell v. Board of Educ. of City of N. Y., 267 App. Div. 817, 293 N. Y. 792; Matter of Coll. of City of N. Y. v. Hylan, 205 App. Div. 372, 236 N. Y. 594; Matter of McAneny v. Board of Estimate & Apportionment of City of N. Y., 232 N. Y. 377; Wakefield v. Board of Educ. of City of N. Y., 79 N. Y. S. 2d 420, 299 N. Y. 664; Strum v. Board of Educ. of City of N. Y., 194 Misc. 182, 277 App. Div. 855, 301 N. Y. 803.)

      John P. McGrath, Corporation Counsel (Arthur H. Kahn and Seymour B. Quel of counsel), for respondent.
    The Legislature intended by the Moffat Law to validate the board’s 1935 salary schedules and to permit the board to continue uninterruptedly the board’s salary schedules then applicable to incumbents, including plaintiffs, and to “ freeze ” as of March 1, 1943, the salaries then being paid in the colleges.
   Froessel, J.

This declaratory judgment action involves the construction of the “ transfer clause ” of former section 889, subdivision b, of the Education Law (L. 1943, ch. 403, known as the Moffat Law), which, with later amendments not here relevant, is now section 3104 of the Education Law. That section, as effective April 8, 1943, so far as here pertinent, provided: “In any public institution of higher learning under the jurisdiction of the board of higher education of a city having a population of one million or more, the salaries and salary increments of the following positions of the teaching and supervising staff shall be: [setting forth salaries and increments] * * *

“In transferring present incumbents from a salary schedule superseded by the provisions of this section, each incumbent so transferred shall have fixed for him for the year nineteen hundred forty-three a salary at a rate not lower than that he enjoyed on March first of such year.
“ This subdivision shall not operate to reduce salaries paid to persons holding positions specified in this subdivision as of March first, nineteen hundred forty-three.” (Emphasis supplied.)

Laws of 1943, chapter 403, which in its section 1 added the matter just quoted, provided in section 2 that: — “ This act shall not affect any right or claim heretofore accrued under salary schedules and schedule conditions lawfully applicable during the period of the employment of any such officer or employee”. (Emphasis supplied.)

The five appellants were appointed as instructors at Brooklyn College in 1937 and 1938 in accordance with a schedule of salary and salary conditions affecting the staffs of City, Hunter and Brooklyn Colleges, which was adopted by respondent in 1935. Appellants received increments in accordance with this 1935 schedule, and they were transferred to the “ Moffat schedule ” — i.e., that set up by chapter 403 of the Laws of 1943, above quoted — at the salaries they were actually receiving on March 1, 1943, under the 1935 schedule.

It is appellants’ contention that the 1935 schedule was null and void; that they were entitled to be appointed in 1937 or 1938 at salaries provided in the salary schedule adopted by respondent in 1932 for Brooklyn College [which 1932 schedule provided for higher salaries than the 1935 schedule); that they were likewise entitled to receive increments from 1937 or 1938 to 1943 in accordance with the 1932 schedule; and that it was incumbent upon respondent to transfer them in 1943 to the Moffat schedule in accordance with the salaries which they were lawfully entitled to receive on March 1, 1943, under the 1932 schedule rather than — as was done — transfer them in accordance with the salaries they were actually receiving under the invalid 1935 schedule.

The lower courts properly granted appellants retroactive pay to the effective date of the Moffat Law (except as barred by the Statute of Limitations), based on the differential between the 1935 and the 1932 schedules, but nevertheless declined to direct appellants ’ transfer from their lawful salary level under the 1932 schedule to the most nearly corresponding level on the Moffat Law schedule. We are all agreed that the 1935 schedule was illegal and that the 1932 schedule was controlling (Matter of Cross v. Board of Higher Educ., 260 App. Div. 907; Matter of Putnam v. Marshall, 286 N. Y. 485; Matter of Adams v. Board of Higher Educ., 263 App. Div. 804, affd. 288 N. Y. 652; Nelson v. Board of Higher Educ., 263 App. Div. 144, affd. 288 N. Y. 649; Kory v. Board of Higher Educ., 266 App. Div. 833, affd. 292 N. Y. 547; Nyquist v. Board of Higher Educ., N. Y. L. J., May 1, 1943, p. 1699, col. 2, affd. N. Y. L. J., Dec. 22, 1943, p. 1862, col. 4; see, also, Harman v. Board of Educ. of City of N. Y., 300 N. Y. 21, 29; Wannerstrom v. Board of Higher Educ. of City of N. Y., Zuckerbrod v. Board of Higher Educ. of City of N. Y., 276 App. Div. 752, motion for leave to appeal denied 300 N. Y. 764, 765).

We must assume that the Legislature uses words in their lawful sense, and that when it provided that these appellants were to be transferred to the Moffat schedule at a rate not lower than that * * * enjoyed on March first ” of 1943 and that the Moffat Law should not operate to reduce salaries paid ” as of that date (emphasis supplied), it used the words 1 ‘ enjoyed ” and paid ” in the sense of 11 lawfully entitled to enjoy ” and “ lawfully payable ”, in accordance with and not in violation of, a former statutory mandate (Education Law, § 889, as amd. by L. 1931, ch. 540). The “ rate * * # enjoyed” by these appellants was the lawful rate to which they had the right under the 1932 schedule, and it follows that they were entitled to be transferred to the Moffat schedule in accordance with such rate, and to receive increments thereafter on the latter basis.

The saving clause in section 2 of that statute preserved not only i.he salary rights which had accrued to these appellants under the 1932 “ lawfully applicable ” schedule, but, since it used the words “ any right or claim ” (emphasis supplied), also the rights flowing from such salary rights, and one of such rights was the right to be transferred to the Moffat schedule on the basis of the 1932 schedule.

If, as respondent contends, the Legislature intended to transfer incumbents to the Moffat schedule at the salaries they were actually receiving in 1943, despite the illegality thereof, then it follows that the Legislature intended to leave such incumbents entirely at the mercy of fortuitous budgetary conditions, and respondent’s whim, caprice, violation of a statutory mandate, or other improper action. If, for example, by reason of a temporary lack of appropriations or some clerical error or even arbitrary action by respondent, an incumbent was, on March 1, 1943, receiving far less than his lawful salary, or, to pose the extreme case, nothing at all at that particular time, then, carrying through respondent’s argument, such incumbent would necessarily have been transferred to a salary line on the Moffat schedule far less than his lawful salary or even to the zero line. We cannot ascribe to the Legislature a purpose so unreasonable and unjust. If, after having frozen the 1932 schedule by virtue of section 889, as amended in 1931, to protect the teaching profession, the Legislature intended to reduce these salaries, it could have done so by the use of plain and direct language. We should not strain to spell out such intention.

In Rasmussen v. City of New York (301 N. Y. 532), we held that the statutory phrase “ salary provided in the budget ” (Local Laws, 1942, No. 45 of City of New York) meant not the salary actually and in fact provided in the budget, namely, $2,700, but rather the salary which under applicable law the plaintiff employee was lawfully entitled to have provided therein, namely, $3,180. Similarly, in McGarey v. State of New York (276 App. Div. 793) it was said, in reference to a statute analogous to that now before us, “ The word ‘ paid ’ here is used in its customary and not consummative sense. It means what is required to be paid by law. It does not mean that, if, in violation of a statutory mandate, there is a neglect by local fiscal officers to pay what the law requires them to pay, the State must take up local obligation where they leave off.” (Emphasis supplied.)

In the light of these decisions, when the statute says that it “ shall not operate to reduce salaries paid ” (emphasis supplied), it means that it shall not operate to reduce the salaries “ required to be paid by law ” to appellants, namely, those set up by the 1932 schedule. The mere fact that here there was a “ neglect by local fiscal officers ”, “in violation of a statutory mandate ”, to pay such lawful salaries cannot affect the result. Appellants, within the meaning of the Moffat Law, “ enjoyed ” their lawful salaries on March 1, 1943, even though, because of respondent’s neglect, such salaries were not physically handed over to them. The right to demand constitutes enjoyment under the statute (Fitzroy v. United States, 17 F. Supp. 503, 507).

Leighton v. Bearman (302 N. Y. 865) is not in point. We there construed a statute which made it unlawful for a landlord to demand, accept or receive rent “ greater than the rent * * * received * * * on March first, nineteen hundred and forty-nine ” (Local Laws, 1949, No. 73 of City of New York). We held that the word “ received ” had reference to the rent actually and in fact received by the landlord on that date, and not to the rent as later increased retroactively as of November 15, 1948, by an order of the Federal Housing Expediter. There, however, the rent actually received on March 1, 1949, was the rent to which the landlord was lawfully entitled on that date even though such rent was later increased retroactively. But here the salaries paid under the 1935 schedules were always unlawful and ineffective, and no affirmative action by these appellants to seek increases over a basic lawful rate was necessary as there was in the Leighton case (supra).

The record before us contains what is said to be the “ legislative history ” of the Moffat Law. As it consists in large measure of self-serving documents, which in their effect are so ambiguous and inconclusive as to be of no practical value in ascertaining legislative intent, it will serve no useful purpose to dwell upon it.

The judgments below should be modified by awarding appellants, in addition to the relief already granted under paragraph three of the prayer of the amended complaint, the relief prayed for in the remaining paragraphs of said prayer, in accordance with this opinion, and, as so modified, affirmed, with one bill of costs to appellants in this court and in the Appellate Division.

Lewis, Conway and Dye, JJ., concur with Froessel, J.; Loughran, Ch. J., Desmond and Fuld, JJ., dissent.

Judgment accordingly.