text:
    In the Matter of Metropolitan Life Insurance Company, Appellant and Respondent, against New York State Labor Relations Board et al., Respondents and Appellants. Industrial Insurance Agents Union, Local 30, et al., Interveners, Respondents and Appellants.

      Argued February 20, 1939;
    decided April 11, 1939.

      Samuel Seabury for petitioner, appellant and respondent.
    The courts below erred in holding that agents are employees within the meaning of the Labor Relations Act (Labor Law [Cons. Laws, ch. 31], amd. L. 1937, ch. 443). (People v. Thompson, 230 App. Div. 75; 255 N. Y. 530; Van Vlaanderen v. Peyet Silk Dyeing Corp., 278 Fed. Rep. 993; People v. I. R. T. Co., 169 App. Div. 32; De Vries v. Alsen Cement Co., 290 Fed. Rep. 746; Jurman v. Hebrew National Sausage Factory, 198 App. Div. 456; Gay v. Hudson River Electric Power Co., 178 Fed. Rep. 499; Matter of Europe v. Addison Amusements, 231 N. Y. 105; Lipstein v. Provident Loan Society, 154 App. Div. 732; People v. Graves, 5 N. Y. Supp. [2d] 555; Smith v. Boston & Albany R. R. Co., 99 App. Div. 94; 181 N. Y. 132; Leppard v. O’Brien, 225 App. Div. 162; 252 N. Y. 563; Brown v. Manufacturers Trust Co., 278 N. Y. 317; McKuskie v. Hendrickson, 128 N. Y. 555; Matter of Evans, 113 App. Div. 373; Shannahan v. Empire Engineering Corp., 204 N. Y. 543.) The provisions of the act, whereby the Legislature invests the Board with power to fix any unit it may see fit, and to determine, and at will terminate, the tenure of representatives elected by employees, are unconstitutional delegations of legislative power because the exercise thereof by the Board is subject to no rules or standards laid down by the Legislature. (State Const, art. 3, § 1; Stanton v. Board of Supervisors, 191 N. Y. 428; Darweger v. Staats, 267 N. Y. 290; Matter of Small v. Moss, 279 N. Y. 288; Schechter Poultry Corp. v. United States, 295 U. S. 495; Morgan v. United States, 304 U. S. 1; Holgate v. Bashore, 331 Penn. St. 255; People v. Tremaine, 252 N. Y. 27.) Provisions of the act violate the constitutional guaranty of freedom of contract. (Auburn Draying Co. v. Wardell, 227 N. Y. 1; Virginian Ry. Co. v. System Federation, 300 U. S. 515.) Article V of the State Constitution establishes specified civil departments in the State government and prohibits the creation of any additional ones. This constitutional prohibition is violated by the creation of the State Labor Relations Board. An examination of its powers and duties discloses that it is an additional civil department of the State government — independent, self-contained and autonomous, and not within or responsible to any of the departments enumerated in the Constitution. (People v. Tremaine, 252 N. Y. 27.) The order of the Board, fixing Greater New York and the counties of Westchester, Nassau and Suffolk as an appropriate unit for compulsory collective bargaining, is without any evidence to sustain it, and is unreasonable, arbitrary and in disregard of all relevant practical considerations. The nature of the insurance business and the amenability of insurance companies to State statutes and to the regulations of the State Insurance Department, all State-wide in their application, require the unit of representation to be not smaller than the whole of the State. (Stern v. Metropolitan Life Ins. Co., 169 App. Div. 217; 217 N. Y. 626; Consolidated Edison Co. v. National Labor Relations Board, 59 Sup. Ct. Rep. 206; National Labor Relations Board v. Thompson, 97 Fed. Rep. [2d] 13; Interstate Commerce Comm. v. L. & N. R. R. Co., 227 U. S. 88.) The condition in the order of Special Term was proper. (National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1; Virginian Ry. Co. v. System Federation, 300 U. S. 515; Carter v. Carter Coal Co., 298 U. S. 238.)

      Benjamin C. Ribman for Peter Callahan et al., interveners, appellants and respondents.

      Burton A. Zorn, Eugene Cotton, Bernard Jaffe and John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for New York State Labor Relations Board, respondent and appellant.
    The proviso inserted by Special Term into the order of the Board is not properly a part of the order in these proceedings. (Tennessee Pub. Co. v. American Nat. Bank, 299 U. S. 18; Barker Painting Co. v. Local No. 784, 281 U. S. 462; Ashwander v. Tennessee Valley Authority, 297 U. S. 288; Wilshire Oil Co. v. United States, 295 U. S. 100; Burton v. United States, 196 U. S. 283; Columbus & G. Ry. Co. v. Miller, 283 U. S. 96; Fairchild v. Hughes,
      258 U. S. 126; Massachusetts v. Mellon, 262 U. S. 447; Schieffelin v. Goldsmith, 253 N. Y. 243; N. L. R. B. v. Coleman Lumber Co., 98 Fed. Rep. [2d] 18; West Coast Hotel Co. v. Parrish, 300 U. S. 379.) The industrial agents employed by the petitioner are employees within the meaning of the act. (Cons. Laws, ch. 31, § 701, subd. 3; Associated Press v. N. L. R. B., 301 U. S. 103; N. L. R. B. v. Mackay Radio Tel. Co., 58 Sup. Ct. Rep. 904; City Bank Farmers Trust Co. v. N. Y. C. R. R. Co., 253 N. Y. 49.) The Board’s determination of the appropriate unit must be affirmed. (Zakonaite v. Wolf, 226 U. S. 272; Lewis v. Frick, 233 U. S. 291; Swayne & Hoyt, Ltd., v. United States, 300 U. S. 297; Washington, V. & M. Coach Co. v. National Labor Relations Board, 301 U. S. 142; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; National Labor Relations Board v. Carlisle Lumber Co., 94 Fed. Rep. [2d] 138; 304 U. S. 575; Association of Clerical Employees v. Brotherhood, 85 Fed. Rep. [2d] 152; Brotherhood of Locomotive Firemen & Enginemen v. Kenan, 87 Fed. Rep. [2d] 651.) The provisions of the act authorizing the Board to determine the appropriate collective bargaining unit and permitting the Board by rule or regulation to fix the life of representatives, do not constitute an unlawful delegation of legislative power. (Premier-Pabst Sales Co. v. Grosscup, 298 U. S. 226; Highland Farms Dairy, Inc., v. Agnew, 300 U. S. 608; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531; Bourjois, Inc., v. Chapman, 301 U. S. 183; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270; People v. Griswold, 213 N. Y. 92; People ex rel. Doscher v. Sisson, 222 N. Y. 387; Virginian Ry. Co. v. System Federation, 300 U. S. 515; Village of Saratoga Springs v. Saratoga G. Co., 191 N. Y. 123; People v. Beakes Dairy Co., 222 N. Y. 416; N. F. Central Securities Corp. v. United States, 287 U. S. 12; Buttfield v. Stranahan, 192 U. S. 470; Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194; United States v. Shreveport Grain & Elevator Co., 287 TJ. S. 77; Hampton & Co. v. United States, 276 U. S. 394; Acme Steel & Malleable Iron Works v. Dept.

      of Labor, 228 App. Div. 756; 255 N. Y. 555.) The terms of the act do not involve any unconstitutional delegation of public power to private agencies, nor do they involve any unconstitutional violation of the guaranty of freedom of contract. (System Federation v. Virginian Ry. Co., 300 U. S. 515; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1; Railroad Retirement Board v. Alton R. R. Co., 295 U. S. 330; Old Dearborn Distributing Co. v. Seagram Distilling Corf., 299 U. S. 183; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Nebbia v. New York, 291 U. S. 502.) The creation of the State Labor Relations Board is entirely consistent with the provisions of article 5 of the State Constitution since the Board is not a new civil department of government but is an integral part of the department of labor. (Massachusetts v. Mellon, 262 U. S. 447; Heald v. District of Columbia, 259 U. S. 114; Ashwander v. T. V. A., 297 U. S. 288; Schieffelin v. Goldsmith, 253 N. Y. 243.)

      Louis B. Boudin, Sidney Elliott Cohn and Julia C. Algase for Industrial Insurance Agents Union, Local 30, intervener, respondent and appellant.
    The act is constitutional, the major provisions thereof being identical with those of the national act. (National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1; National Labor Relations Board v. Fruehauf Co., 301 U. S. 49; National-Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U. S. 58; Associated Press v. National Labor Relations Board, 301 U. S. 103; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U. S. 453; Chamberlain, Inc. v. Andrews, 271 N. Y. 1; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Monongahela Navigation Co. v. United States, 148 U. S. 312; Adair v. United States, 208 U. S. 161; United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311; Railroad Retirement Bd. v. Alton R. R. Co., 295 U. S. 330.) The act is not unconstitutional because of the specific provisions with respect to the bargaining unit. (People v. Richards, 108 N. Y. 137; Friedman v. N. Y. C. R. R. Co., 206 App. Div. 169; People v. Lamphere, 219 App. Div. 422; People v. City of Buffalo, 93 Misc. Rep. 275; Matter of Wallach’s Inc. v. Boland, 253 App. Div. 371; Rail & River Coal Co. v. Yaple, 236 U. S. 338; Massachusetts v. Mellon, 262 U. S. 447.) The employees involved herein are within the purview of the act. (Matter of New York & Brooklyn Bridge, 72 N. Y. 527; Cooper-Snell Co. v. State, 230 N. Y. 249; Matthews v. Matthews, 240 N. Y. 28; People ex rel. McNeile v. Glynn, 128 App. Div. 257; People ex rel. McEachron v. Bashford, 128 App. Div. 351; Lautman v. City of New York, 157 App. Div. 219.) The bargaining unit designated by the Board was proper. (Washington Coach Co. v. National Labor Relations Board, 301 U. S. 142; Cons. Ed. Co. v. National Labor Relations Board, 95 Fed. Rep. [2d] 390; National Labor Relations Board v. Thompson Products, 97 Fed. Rep. [2d] 13; Standard L. & S. Co. v. National Labor Relations Board, 97 Fed. Rep. [2d] 531.) The condition placed upon the Board’s order by the Special Term is improper. That portion of the order should be eliminated. (Virginian Ry. Co. v. System Federation, 300 U. S. 515; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1.)
   Loughran, J.

The questions for decision go to the scope and validity of the New York State Labor Relations Act (Laws of 1937, ch. 443).

The act was added to the Labor Law (Cons. Laws, ch. 31) as article 20, sections 700-716. Section 700 is captioned “ Findings and policy.” It reads as follows:

“ Under prevailing economic conditions individual employees do not possess full freedom of association or actual liberty of contract. Employers in many instances organized in corporate or other forms of ownership associations with the aid of government authority have superior economic power in bargaining with employees. This growing inequality of ] bargaining power substantially and adversely affects the general welfare of the state by creating variations and instability in competitive wage rates and working conditions within and between industries and by depressing the purchasing power of wage earners, thus (a) creating sweat shops with their attendant dangers to the health, peace, and morals of the people, (b) increasing the disparity between production and consumption, and (c) tending to produce and aggravate recurrent business depressions. The denial by some employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining tend to lead to strikes, lockouts and other forms of industrial strife and unrest, which are inimical to the public safety and welfare and frequently endanger the public health.
" Expérience has proved that protection by law of the right of employees to organize and bargain collectively removes certain recognized sources of industrial strife and unrest, encourages practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and tends to restore equality of bargaining power between employers and employees.
“ In the interpretation and application of this article, and otherwise, it is hereby declared to be the public policy of the state to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection, free from, the interference, restraint or coercion of their employers.
"All the provisions of this article shall be liberally construed for the accomplishment of this purpose.
“ This article shall bo deemed an exercise of the police power of the state for the protection of the public welfare, prosperity, health and peace of the people of the state.”

The general structure of the act must be briefly described. It creates a State Labor Relations Board and defines its composition and organization (§ 702). It affirms the right-of employees to self-organization and to bargain collectively through, representatives of their own choosing (§ 703). It defines certain activities of employers as unfair labor practices (§ 704). It regulates the representation of employees for the purpose of collective bargaining (§ 705). It empowers the Board to prevent employers from engaging in the defined unfair labor practices (§ 706). It authorizes the Board to petition the Supreme Court of the State for the enforcement of its orders. The findings of the board as to facts, if supported by evidence, shall be conclusive.” Any person aggrieved by a final order of the Board may have a review thereof in the Supreme Court and the judgment of the court may be reviewed on appeal (§ 707). The Board has extensive investigatory powers (§ 708). Willful interference with its members or agents in the performance of their duties is punishable by fine and imprisonment (§ 709). Nothing in the act is to be construed to interfere with the right of employees to strike (§713).

Metropolitan Life Insurance Company (hereinafter called Metropolitan) employs approximately 2,500 agents to solicit industrial insurance in the city of New York and the counties of Nassau, Suffolk and Westchester. These agents on April 13, 1938, elected as their representative for the purpose of collective bargaining a labor organization called Industrial Insurance Agents Union, Local 30, affiliated with the United Office & Professional Workers of America, C. I. O.” The Board then certified that this union (hereinafter called Local 30) had been designated by these agents as their exclusive collective bargaining representative. Those proceedings were taken under section 705 of the act.

Local 30 thereafter offered to confer with Metropolitan for the purpose of arriving at a collective bargaining agreement. When this proposal was rejected, the Board, acting on charges filed by Local 30, issued a complaint against Metropolitan alleging that its refusal to negotiate with Local 30 constituted the unfair labor practice of refusing to bargain collectively. (See subd. 6 of section 704 of the act.) Metropolitan appeared before the Board and chailenged the constitutionality of the act and its applicability in this instance. The Board took jurisdiction, heard evidence on the merits, made findings sustaining the charges of Local 30, and by its order of June 7,1938, directed Metropolitan to cease and desist from refusing to bargain collectively with Local 30 as the exclusive representative of the agents in question and to post for thirty days notices that it would do so. This order further directed Metropolitan, upon request, to bargain collectively with Local 30 as such exclusive representative.

Metropolitan petitioned the Supreme Court to vacate the order. The Board countered with a motion that the order be enforced. Special Term denied the petition of Metropolitan and granted the cross-motion of the Board. The Appellate Division affirmed. By its leave, the case is now here on cross-appeals.

(1) The first point made by Metropolitan is that its agents in question are not employees ” within the meaning of the act.

The Labor Law is chapter 31 of the Consolidated Laws. The act was inserted therein as article 20 (L. 1937, ch. 443, § 1). Article I of the Labor Law (the same chapter 31) has long provided: Whenever used in this chapter * * * 5. Employee ’ means a mechanic, workingman or laborer working for another for hire.” (§ 2.) Metropolitan insists that that definition must be read into the act since the act is thus part of “ this chapter.” Metropolitan’s agents are not employees within that definition. Hence, we are asked to conclude that the act was without application to the present case.

But the act contains its own definitions. Section 701 of article 20 of the Labor Law provides: “ When used in this article * * * 3. The term 1 employees ’ includes but is not restricted to any individual employed by a labor organization; any individual whose employment has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment; and .shall not be limited to the employees of a particular employer, unless the article explicitly states otherwise, but shall not include any individual employed by his parent or spouse or in the domestic service pf any person in his home, or any individuals employed only for the duration of a labor dispute, or any individuals employed as farm laborers.” (The emphasis is ours.)

The act also elsewhere specifies employees to whom it is not applicable. Section 715 says: The provisions of this article shall not apply to the employees of any employer who concedes to and agrees with the board that such employees are subject to and protected by the provisions of the national labor relations act or the federal railway labor act or to employees of the state or of any political or civil subdivision or other agency thereof, or to employees of charitable, educational or religious associations or corporations.”

To our minds it is entirely plain that these terms of inclusion and exclusion expressed by sections 701 and 715 of article 20 of the Labor Law were not intended to be touched by the narrow definition of “ Employee ” that had been previously laid down in section 2 of article I.

Metropolitan stresses the omission from section 701 of the phrase “ any employee,” which is part of the definition of “ employee ” made by section 2 of the National Labor Relations Act. (U. S. Code, tit. 29, ch. 7, § 152, subd. 3.) Inasmuch as article 20 of the Labor Law largely adopted the text of the National Act, this omission is said to bespeak a deliberate purpose of our Legislature not to go along with the Congress of the United States in extending the protection of this legislation to so-called white collar workers. We think it unnecessary to set forth our analysis of the many critical refinements which this idea implies. Over and above all such argumentation stands the engendering principle of the New York act as declared by the words already quoted from section 700. The purpose and policy there avowed — and the scheme of the act as a whole — dispel all doubt that these agents of Metropolitan are employees in the sense of section 701.

(2) Subdivision 2 of section 705 of the act provides: “ The board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization, to collective bargaining and otherwise to effectuate the policies of this article, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or any other unit; provided, however, that in any case where the majority of employees of a particular craft shall so decide the board shall designate such craft as a unit appropriate for the purpose of collective bargaining.” Metropolitan contends that this provision amounts to a delegation to the Board of the law-making power of the Legislature. (See N. Y. Const, art. III, § 1; Darweger v. Staats, 267 N. Y. 290, 305.)

Argument is made that the words “ or any other unit ” following the words “ employer unit, craft unit, plant unit,” empower the Board to designate any kind of unit at all. We think the context sufficiently shows that these phrases are cognate language. “Any other unit ” must be taken to mean any other character of unit resembling the types described by the preceding words.

Argument is made that the act is silent respecting any norm whereby the Board may choose between different units. We think the requirement that the unit be “ appropriate for the purposes of collective bargaining ” enjoins upon the Board ascertainable rules of decision for performance of this function.

Subdivision 7 of section 702 of the act authorizes the Board to determine “ the life of the selected representatives.” Argument is made that this commits to the Board an unconfined discretion. But the authority so conferred is to be exercised through “ such rules and regulations as may be necessary to carry out the provisions of this article.” The defined purposes of the act do not countenance what Metropolitan assumes is a limitless power of the Board to permit employees to change bargaining representatives for any reason at any moment.

Before we pass from these phases of the case, it should be noticed also that the act sets up explicit procedural standards as to charges, notice, hearing and findings and as to judicial review. (§§ 706, 707.) Similar provisions of the National Labor Relations Act have been finally construed as affording adequate opportunity to secure judicial protection against arbitrary action in accordance with the well-settled rules applicable to administrative agencies.” (National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 47.)

(3) Metropolitan further contests the validity of the act as an unconstitutional violation of freedom of contract.” National Labor Relations Board v. Jones & Laughlin Steel Corp. (supra) has refuted this point. Metropolitan essays to distinguish that case. We are reminded that the National Labor Relations Act purports to reach only what may be deemed to burden or obstruct interstate or foreign commerce and that there is no commerce clause in the Constitution of this State. Nothing turns on these differences. Due process for us is the same due process to which the Federal Congress is subject when it exercises its commerce power. (Railroad Retirement Board v. Alton R. R. Co., 295 U. S. 330, 347; Central Sav. Bank v. City of New York, 280 N. Y. 9.)

(4) Though the act declares the Board to be created in the Department of Labor (§ 702, subd. 1), it deprives that department of all control over any decision or finding of the Board and of all supervision over the exercise by the Board of any of its powers or duties. (Id. subd. 9.) Members of the Board are appointed by the Governor with the consent and advice of the Senate for a fixed term of six years and are removable by the Governor only for cause. (Id. subd. 1.) Moneys appropriated to the Board are subject to departmental budgetary control (§ 711), but its expenses are paid upon vouchers approved by its chairman. (§ 702, subd. 4.)

Upon this freedom of function and length of tenure, Metropolitan builds an argument that the Board is so far an autonomous unit that its existence offends the constitutional prohibition against the creation of new civil departments of the government of the State. (N. Y. Const, art. V.) We think nothing in that constitutional limitation was intended to prevent the establishment within an existing government department of a quasi-judicial agency with authority to make decisions reviewable only in the courts. Power so to create the agency includes implied power to prescribe all that may fairly be thought to be necessary to foster the agency in its essential functions. In that view, the constitutional command is not here offended by want of sharper intradepartmental regulation of the ministerial work of the Board or by undue restrictions on the executive power of removal. In that view, too, we have now no occasion to examine the separability clause found in section 714 of the act.

(5) Metropolitan insists that there is no substantial evidence to support the finding of the Board that the agents in question constituted a unit appropriate for the purposes of collective bargaining.

Decision by the Board of this issue was chiefly influenced by the following factors: (a) These agents are a homogeneous group whose activities are distinctive in that industrial insurance is designed for people of small means who make payments for it to the agents on a weekly of monthly basis, (b) The five boroughs of the city of New York and the counties of Nassau, Suffolk and Westchester make up one of the “ territories ” into which Metropolitan • has divided the United States for some purposes of its business, (c) The geographical contiguity of Metropolitan’s district offices within that area has resulted in a close relationship among the agents operating therefrom.

On the other hand, Metropolitan maintains that the only appropriate unit was the whole of the State of New York because: (a) The functions of its agents in all parts of the State are the same, (b) Rules regulating its relations with its agents are uniform throughout the State, (c) An agent may write insurance anywhere in the State and (except in special circumstances) receives his commission irrespective of the residence of the policyholder or the location of the office to which the agent is attached.

We cannot say that choice between these two combinations of fact was not fairly the subject of substantially differing viewpoints in reasonable minds. Accordingly we need say no more at this point than that we are without power to disturb this finding of the Board. (Labor Law, § 707, subd. 2.)

The foregoing considerations dispose of the questions presented by the appeal of Metropolitan. The interveners Callahan and others have raised only the same questions on their appeal. We turn now to the appeal of the Board and. that of Local 30, as intervener.

(6) The Board’s application for enforcement of its order was granted by the Special Term, with the condition that the direction to the petitioner [Metropolitan] in the order of the New York State Labor Relations Board, * * * insofar as it directs that negotiations be carried on ‘ exclusively ’ with Local 30, is deemed to mean with no other person as a representative of another but not to prevent negotiations between the petitioner and any of its employees each acting for himself; and with the foregoing interpretation petitioner [Metropolitan] is directed to carry out the order of said Board of June 7, 1938.” The Board and Local 30 demand that we strike this provision from the order of the Special Term on the ground that the court thereby opened the door to practices that might defeat the purposes of the act. We see no reason for doing so. If that order really needed any clarification in this aspect (cf. the Jones & Laughlin case, supra, pp. 45, 46), the proper procedure was an application to the Supreme Court.

The order should be affirmed, without costs.

Crane, Ch. J., Lehman and Finch, JJ., concur;.O’Brien, Hubbs and Rippey, JJ., dissent on the ground that the statute applies only to industrial workers without considering other grounds involved.

Order affirmed.


source: Caselaw Access Project

author: Finch, J. Rippey, J.

license: Public Domain

text:
    In the Matter of Richard Daly, Appellant, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Respondents.
    Argued February 21, 1939;
    decided April 11, 1939.

      L. W. Widdecombe and A. B. Widdecombe for appellant.
    Petitioner was duly appointed law assistant in the office of the Surrogate of Richmond county. (People ex rel. Tyng v. Prendergast, 164 N. Y. Supp. 1042; 178 App. Div. 895; 221 N. Y. 659.) It was not necessary for the Surrogate to conform to the terms and conditions of the 1938 budget in filling the vacancy. (Matter of La Rocca v. Flynn, 257 N. Y. 5; People ex rel. Prendergast v. Cohalan, 101 Misc. Rep. 712; 179 App. Div. 883; 226 N. Y. 636; Forbes v. Cohen, 254 App. Div. 548; People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377; People ex rel. Wingate v. Taylor, 279 N. Y. 246; Ledwith v. Rosalsky, 244 N. Y. 406.) The

      attempted abolition of the position by the Board of Estimate is ineffectual. (People ex rel. Machen v. Hayes, 115 Misc. Rep. 373; 199 App. Div. 930; 233 N. Y. 542; Matter of Rushford v. LaGuardia, 169 Misc. Rep. 581; 255 App. Div. 597; Forbes v. Cohen, 254 App. Div. 548; Whitmore v. Mayor, 67 N. Y. 21; Schieffelin v. Leary, 219 App. Div. 660; Dodge v. City of New York, 252 App. Div. 631; 278 N. Y. 25; People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377.)

      William C. Chanler, Corporation Counsel (Davidson Sommers and William S. Gaud, Jr., of counsel), for respondents.
    Petitioner was not validly appointed to the position of law assistant since no certificate was obtained from the Budget Director as the budget required. (Coggeshall v. Hennessey, 279 N. Y. 438; People ex rel. Plancon v. Prendergast, 219 N. Y. 252; Matter of Dobrovolny v. Prendergast, 219 N. Y. 280; Matter of Flaherty v. Craig, 226 N. Y. 76.) The position of law assistant was duly abolished by the Board of Estimate. (Thoma v. City of New York, 263 N. Y. 402; People ex rel. Plancon v. Prendergast, 219 N. Y. 262; Buckbee v. Board of Education, 115 App. Div. 366; 187 N. Y. 544; Sauerbrunn v. Board of Education, 150 App. Div. 407; 208 N. Y. 550; Dixon v. LaGuardia, 277 N. Y. 84; Walters v. City of New York, 190 N. Y. 375; People ex rel. Stokes v. Tully, 108 App. Div. 345.)
   Finch, J.

The unanimous decision of the Appellate Division was correct and the order appealed from should be affirmed.

The primary question presented is whether the Surrogate of Richmond county should comply with the provision of the 1938 budget of the city of New York, providing that in filling a vacancy application should be made to the Director of the Budget, giving a description of the duties performed by the former incumbent and the reasons why the duties could not be distributed among the other employees in the office. The Director of the Budget would then investigate and, based on his findings, either grant or deny the request in writing, thus guarding against the use of city funds more urgently needed elsewhere. This certificate of the Director of the Budget must be filed with the Comptroller of the city before the latter will pay the proposed incumbent. Pursuant to this budgetary requirement, the Surrogate of Bichmond county originally made such written application but later withdrew the same. An appointment was then made, disregarding this requirement of the 1938 budget as to filling vacancies. Such a certificate has been held by this court to be a reasonable restriction upon the power of selection and appointment. (People ex rel. Plancon v. Prendergast, 219 N. Y. 252; Matter of Dobrovolny v. Prendergast, 219 N. Y. 280.) Even judicial officers may not ignore reasonable budgetary restrictions. (Matter of Flaherty v. Craig, 226 N. Y. 76.)

The petitioner, therefore, was never validly appointed and in consequence is not in a position to test the validity of the abolition of the office.

It follows that the order appealed from should be affirmed, without costs.

Rippey, J.

(dissenting). Section 21 of the Surrogate’s Court Act authorizes the Surrogate of the county of Bichmond to appoint and at his pleasure remove a clerk of the Surrogate’s Court and as many other clerks for his office as the Board of Aldermen authorize him to so appoint. It is further provided that the Board of Aldermen of the city of New York must fix the compensation of the clerk or clerks so appointed and that their compensation shall be paid by the county.

In 1930, pursuant to the provisions of that act and at the request of the Surrogate of the county of Bichmond, the Board of Aldermen of the city of New York created the office of law assistant in the office of the Surrogate and fixed the salary to be paid to the appointee of such office at $4,500 per year. The office having been legally created and the compensation of the incumbent legally fixed, the statute required the Board of Estimate and Apportionment of the city of New York to make the necessary provision in the budget to meet the county charge (People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377, 380,381; People ex rel. Cropsey v. Hylan, 232 N. Y. 601; Matter of Wingate v. McGoldrick, 279 N. Y. 246), which it did in the budget of 1931. The Surrogate thereupon filled the office at the salary fixed and the person so appointed continued in office until his death on November 17, 1937. During all of that period, the compensation fixed by the Board of Aldermen was provided for by the Board of Estimate and Apportionment in the several yearly budgets. The same office with the same compensation was continued in the budget made in the fall of 1937 for the year 1938 and for the first six months of 1939. That budget was validly adopted and was in all respects a legal and valid budget for the period it purported to cover (Dixon v. LaGuardia, 277 N. Y. 84).

On February 2, 1938, the Surrogate of Richmond county appointed petitioner to the position of law assistant to fill the vacancy created by the death of the former incumbent and duly certified and filed a notice of petitioner’s appointment. On the same day the petitioner took the oath of office and entered upon the discharge of his duties. He has since continued to discharge the duties of that office.

The Comptroller of the city of New York has not authorized payment of the salary provided as compensation for those services and the reason advanced for the failure of the Comptroller to act is that the Director of the Budget did not file a certificate authorizing the filling of the vacancy and stating the rate of the compensation to be paid. The Director of the Budget has failed to act because the Surrogate did not comply with the conditions precedent to making the appointment as required by the provisions of the 1938 budget. Additionally, presuming to act under the provisions of section 68 of the new charter (in effect January 1, 1938), the Board of Estimate (successor to the Board of Estimate and Apportionment) adopted a resolution abolishing the office of law assistant to the Surrogate of Richmond county as of January 1, 1938, and adopted another resolution under section 127 of the charter transferring the appropriation for that position to another item in the budget.

By subdivision b of section 952 of the new charter, the budget for the year 1938 was to be prepared and adopted at the times and in the manner prescribed by and in accordance with the provisions of law in force at the time of the adoption of the new charter. Section 226-c of the old charter (L. 1901, ch. 466, as amd.) in force at the time of the adoption of the budget provides that the budget may contain terms and conditions not inconsistent with law. In the 1938 budget it is provided, among other things, that no vacancy existing on January 1, 1938, in an appointive office shall be filled until the head of the Department, Board, Bureau or Office shall make written application to the Director of the Budget for permission to fill the vacancy,” whereupon the Director of the Budget is required to investigate the application and may in his discretion either grant or deny the same in writing, but if the application is granted he is required to issue a certificate authorizing the filling of the vacancy, the manner in which it shall be filled and the rate of compensation to be paid, one of which certificates shall be filed with the “ department affected,” one with the Comptroller and one each month with the Secretary of the Board of Estimate.

The act of the Board of Estimate in abolishing the position was abortive and the Surrogate was not required to meet the conditions contained in the budget before making the appointment.

The Surrogate of the county of Richmond is a member of the jxxdicial system of the State (Matter of LaRocca v. Flynn, 257 N. Y. 5, 14). Both he and his assistants are State officers and none of them are employees of the county of Richmond or of the city of New York (Matter of Prendergast v. Cohalan, 226 N. Y. 636), even though their salaries come from the city or county treasuries. In view of the nature of the office and the provisions of section 21 of the Surrogate’s Court Act, the Board of Estimate, as matter of law, had no power to abolish the position or to modify or transfer to another item the salary thereof {People ex rel. Cropsey v. Hylan, 199 App. Div. 218; affd., 232 N. Y. 601), nor did the Budget Director have power to determine whether the position was or was not necessary (People ex rel. O’Loughlin v. Prendergast, supra). The Legislature established the office and conferred upon the Board of Aldermen the exclusive right to fix the salary. That is so regardless of the alleged coverage of section 68 of the new charter, since that section embraces only city officers, such as are connected with political organization of the city government ” (Whitmore v. Mayor, 67 N. Y. 21, 22), or of the alleged coverage of the conditions for filling a vacancy under the budget, since the Surrogate is not the head of a department, board, bureau or office of the city government and the provisions of neither section were intended to embrace other than strictly city officers (Led-with v. Rosalsky, 244 N. Y. 406, 410). Furthermore, as matter of fact, the provisions of section 68 confer no power upon the Board of Estimate to abolish the position, since the power to create, abolish or modify positions and grades of positions not provided for in the city charter but otherwise provided by statute is specifically excepted from the power conferred (Cf. Forbes v. Cohen, 254 App. Div. 548). The creation of the office by the Board of Aldermen was authorized by the Legislature. When created, the Legislature ordained that the Surrogate only could make or revoke an appointment. The Surrogate was not required by the Legislature to secure permission from the Board of Estimate or from the Budget Director of the city of New York, nor had the Board of Estimate any power to fix a salary for the office or the Budget Director power to approve, reject or reduce the salary as fixed by the Board of Aldermen. The Legislature has excluded the Board of Estimate from the exercise of any such power.

The order appealed from should be reversed and the order of the Special Term affirmed, with costs in this court and the Appellate Division.

Crane, Ch. J., Lehman, O’Brien, Hubbs and Lotjghran, JJ., concur with Finch, J.; Rippey, J., dissents in opinion.

Order affirmed.


author: Loughran, J. Finch, J. Rippey, J.

text:
    In the Matter of William T. Rushford et al., Appellants and Respondents, against Fiorello H. LaGuardia, as Mayor of the City of New York, et al., Respondents and Appellants.
    Argued February 21, 1939;
    decided April 11, 1939.

      Irving H. Saypol and Leo Kotler for petitioners, appellants and respondents.
    The budget adopted prior to December 25, 1937, is valid as the budget for the year 1938 and for the first six months of 1939. (Dixon v. LaGuardia, 166 Misc. Rep. 889; 253 App. Div. 881; 277 N. Y. 84.) The purported resolution of the Board of Estimate of February 28, 1938, is void. (Thoma v. City of New York, 263 N. Y. 402; Dixon v. LaGuardia, 166 Misc. Rep. 889.) The resolution of the Board of Estimate, assuming it to be validly adopted, was ineffective as to the petitioners. (Whitmore v. Mayor, 67 N. Y. 21; Schieffelin v. Leary, 219 App. Div. 660.) Those petitioners appointed after January 1,1938, at $2,000 or $1,200 per annum are entitled to receive salary at $3,240 per annum from the date of appointment. (Hanley v. City of Nexo York, 250 App. Div. 552; 275 N. Y. 482.) Section 93c-2.0 of the Administrative Code of the City of New York (L. 1937, ch. 929), providing that the failure to sign a payroll under protest shall be deemed an accord and satisfaction of all claims against the city for wages or salary due to such person for the period covered by such payroll, is unconstitutional. (People ex rel. Witherbee v. Supervisors, 70 N. Y. 228; Williams v. Village of Port Chester, 72 App. Div. 505; People v. Johnson, 185 N. Y. 219; Gilbert v. Ackerman, 159 N. Y. 118; United States v. Wiley, 11 Wall. 508; Fuller v. Kemp, 138 N. Y. 231; Nassoiy v. Tomlinson, 148 N. Y. 326; Laroe v. Sugar Loaf Dairy Co., 180 N. Y. 367; Kehn v. State, 93 N. Y. 291; McMahon v. Mayor, 22 App. Div. 113; Mance v. Hossington, 205 N. Y. 33; Jaffray v. Davis, 124 N. Y. 164; Komp v. Raymond, 175 N. Y. 102; Bung v. Koop, 48 N. Y. 225.)

      William C. Chanler, Corporation Counsel (William S. Gaud, Jr., of counsel), for defendants, respondents and appellants.
    Section 68 of the charter empowered the Board of Estimate to reduce the petitioners’ salaries to $1,200 a year on February 28, 1938. (Matter of Hurlbut, 88 Misc. Rep. 679; 169 App. Div. 958; Matter of Edkins v. Wotherspoon, 173 App. Div. 330; People ex rel. Kaufman v. Board

      of Education, 166 App. Div. 58; Matter of Spawn v. Fleming, 208 App. Div. 582: Thoma v. City of New York, 263 N. Y. 402; People ex rel. Plancon v. Prendergast, 219 N. Y. 252; Buckbee v. Board of Education, 115 App. Div. 366; 187 N. Y. 544; Sauerbrunn v. Board of Education, 150 App. Div. 407; 208 N. Y. 550; Walters v. City of New York, 190 N. Y. 375; People ex rel. Stokes v. Tully, 108 App. Div. 345.) The petitioners who were appointed on or after January 1, 1938, at salaries of less than $3,240 a year are in no event entitled to receive any greater salaries than those at which they were appointed. (Matter of Debrovolny v. Prendergast, 219 N. Y. 280; People ex rel. Plancon v. Prendergast, 219 N. Y. 252.) Section 93c-2.0 of the Administrative Code forbids the granting of any relief to those of the petitioners who failed to sign their payrolls under protest. (Quayle v. City of New York, 278 N. Y. 19; Dodge v. City of New York, 278 N. Y. 25; Matter of Shevlin v. LaGuardia, 254 App. Div. 922; 279 N. Y. 749.)
   Loughran, J.

The main questions concern the limits of the power of the Board of Estimate of the city of New York to fix salaries paid from the city treasury.

The position of clerk to a justice of the Municipal Court of the city of New York was created by chapter 235 of the Laws of 1929, which provides as follows: “ There shall also be a clerk to each justice of such court. Such clerk and his successors shall be appointed by such justice and shall hold office during the pleasure of such justice. The salaries of such clerks shall be fixed by the board of estimate and apportionment of such city.” On January 1, 1938, the powers of the Board of Estimate and Apportionment became vested in its successor, the Board of Estimate. (New York City Charter, effective Jan. 1, 1938, § 957.)

In the budget of the city for 1938 the salary of a clerk to a justice of the Municipal Court was fixed at $3,240 a year by the 1937 Board of Estimate and Apportionment. The validity of this budget was upheld in Dixon v. LaGuardia (277 N. Y. 84). On the day that case was decided (February 28, 1938), the then Board of Estimate adopted a resolution which in part is as follows:

“ Resolved, that, pursuant to the provisions of sections 67 and 68 of the New York City Charter, the Board of Estimate does hereby fix salaries and create, abolish and modify positions and grades of positions as appearing in the Budget voted upon by the Board of Estimate and Apportionment on October 29, 1937, in accordance with the schedules hereto attached, such modifications to take effect as of March 1, 1938; * * *
“ MUNICIPAL COURT
Estimate No. 70
Code Line No. No. Eliminate Substitute 2945 15 Clerk to Justice 68 at $3240— 68 at $1200—
$220,320. $81,600.”

Under this form the 68 clerks to the justices of the Municipal Court have been paid at the rate of $1,200 a year since March 1, 1938. They brought this proceeding to compel payment of their salaries from that date at the budgetary rate of $3,240 a year. Not all of them stand in the same position. Eleven were appointed in 1938 at salaries less than $3,240 a year. Twenty-nine at one time or another after March 1, 1938, failed to protest payment of their salaries at the $1,200 rate. The situations of these forty petitioners do not, however, require separate consideration if the Board of Estimate had power to adopt the resolution of February 28, 1938. In that case, none of the petitioners can prevail.

This first question entirely turns on the construction of section 68 of the new charter which had no analogue in the old charter. Section 68 provides: “ Creating, Abolishing or Modifying Positions and Grades. The board of estimate may at any time, subject to the provisions of this charter and of the civil service law and except as otherwise provided by statute, create, abolish or modify positions and grades of persons paid from the city treasury.” No claim is made that any conflicting provision of the Civil Service Law (Cons. Laws, ch. 7) or other statute is here applicable.

As appellant on this branch of the case, the city takes the ground that section 68 within its limits is authority to the Board of Estimate to increase or reduce — as and when it chooses — any of the thousands of budgetary salary items, so long as the total amount of a budget is not exceeded. We think the words of section 68 would not be so understood by ordinary people — or for that matter even by those who may be able to read the section by the lamp of technical knowledge of the complexities of municipal budget making. Neither the position nor the grade of any .person in the service of the city would be either created or abolished were his salary changed. The whole idea of the city’s argument at this point is that the phrase “ modify positions and grades of persons ” means reduce the salary of any person.” We feel safe in the conviction that so forced a construction would add to the text of section 68 something that cannot reasonably be found there. The collateral provisions of the charter and of the Administrative Code referred to by Judge Rippey fortify this conclusion. We have no doubt that the courts below rightly held that section 68 empowers the Board of Estimate to create, abolish or modify positions only when it adopts a budget.

It follows that the budgetary rate of $3,240 is still in force and so we pass to the cases of the eleven petitioners who were appointed in 1938 at lesser salaries.

The budget became effective January 1, 1938. Except as to elected officials, it provided that any vacancy then existing or occurring thereafter should be filled only when the head of the department, board, bureau or office had authority from the Director of the Budget in the formTofa written certificate specifying the manner in which such vacancy is to be filled and the rate of compensation to be paid.” It also provided that the Comptroller should not pay the salary of any person appointed after January 1, 1938, unless there was on file in his office such a certificate of the Director of the Budget, “ and then only at the rate of compensation stated in the certificate.” Pursuant to such certificates issued to the Municipal Court, the eleven petitioners in question were appointed, seven at an annual salary of $2,000, four at an annual salary of $1,200. On the supposed authority of Whitmore v. Mayor (67 N. Y. 21) the Special Term ruled that the only measure of their compensation was that fixed by the budget. The Appellate Division reversed that ruling and held that none of them was entitled to more than the salary at which he was so appointed. This issue is before us for review on the cross-appeal of ten of the aggrieved petitioners. We think the Appellate Division correctly disposed of it.

The salaries of the eleven petitioners were not fixed by statute. (Cf. Whitmore v. Mayor, supra; People ex rel. Bacon v. Board of Supervisors, 105 N. Y. 180.) As has already been observed, chapter 235 of the Laws of 1929, which created the office of clerk to a justice of the Municipal Court, granted full power to fix the salary to the Board of Estimate and Apportionment. The regulations respecting the filling of vacancies were put into the budget by that Board. These, we think, were a reasonable method for exercise of its salary-fixing power. (See People ex rel. Plancon v. Prendergast, 219 N. Y. 252.) The petition does not allege that the Director of the Budget acted arbitrarily or without reason. Under the circumstances, our judgment is that each of the eleven petitioners should have only his appointed salary.

For the reasons stated by Judge Rippey the petitioners who failed to sign their payrolls under protest cannot have relief.

The order of the Appellate Division should be affirmed, without costs.

Finch, J.

(dissenting in part). It is agreed that there can be no recovery by those of the petitioners who failed to protest. (Quayle v. City of New York, 278 N. Y. 19; Matter of Shevlin v. LaGuardia, 254 App. Div. 922; affd., 279 N. Y. 649.)

It is also agreed that there can be no recovery by those of the petitioners who accepted appointment at a lower salary pursuant to the certificate of the Budget Director. (Matter of Dobrovolny v. Prendergast, 219 N. Y. 280.)

I cannot agree, however, that there can be a recovery by the remaining petitioners in disregard of the resolution by the city of New York reducing the salaries pursuant to sections 67 and 68 of the charter.

The question presented here is whether the Board of Estimate has the power, between the times of adopting the budget, to reduce the salaries of the clerks of the Municipal Court.

No issue affecting the independence of the judicial branch of the government is involved, since there is nothing to prevent the city from reducing the salaries of the judges of the Municipal Court. (Haggerty v. City of New York, 267 N. Y. 252.) The Legislature has provided expressly: “ Salaries of such clerks shall be fixed by the board of estimate and apportionment of such city.” (Laws of 1929, ch. 235.)

No other prohibition, statutory or otherwise, existing, we are thus directed to the question whether the language of section 68 of the charter of the city of New York permits the Board of Estimate of the city to make this reduction. Section 68 of the charter provides:

“ § 68. Creating, abolishing or modifying positions and grades. The board of estimate may at any time, subject to the provisions of this charter and of the civil service law and except as otherwise provided by statute, create, abolish or modify positions and grades of persons paid from the city treasury.”

This statute must be enforced according to its terms. There is no ambiguity in its language.

Clearly the language is sufficiently broad to authorize the action of -the Board of Estimate. It is conceded that such action might be taken at the annual making of the budget. Section 68 expressly gives power to modify positions ” “ at any time.” This language applies to the positions held by these petitioners. The authority sought by the city, namely, to control the expenditures from its own treasury, consists of nothing unusual but is the ordinary authority possessed by every corporation, large or small. It is well within the principle of home rule, and the court might almost take judicial notice of the efforts which the city has been making over the course of the years to acquire the elementary right to control its own expenditures. Also, the city has been granted a similar right by the Legislature on many special occasions prior to the adoption of this new charter. For example, statutes gave the right to the city to rearrange and reclassify salaries during the recent financial emergency, even though they had been fixed previously in the budget. This power, then granted to the city, has been continued by section 68 and has eliminated the necessity for the city to apply to the Legislature for such an enabling act on special occasions, because section 68 explicitly provides that such power may be exercised at any time.

It is urged that the phrase “ modify positions and grades of persons ” does not grant authority to change salaries. The dictionary defines “ position ” as including employment. It requires no citation of authorities to demonstrate that one of the most important attributes of employment is the amount of compensation. Furthermore, section 68 ties up the positions and grades referred to with the compensation paid from the city treasury. If that is altered, certainly the employment or position is modified to the extent of the change in salary. But it is further urged that even if this power exists it must be confined to budget-making time. A complete answer, however, is that the power is expressly given to be exercised “ at any time.” It is further urged that if this elasticity in reference to the details of the budget is permitted to the city of New York then there will be nullified the salutary restraint arising out of the adoption of the budget. This overlooks the fact that the important consideration in the making of any budget is the total amount which will be required by that budget. Along with this must go hand in hand a certain amount of elasticity with reference to the details in order to take care of various contingencies which are continually arising in connection with the operation of the government of the city of New York. The argument that to give to the city the power to deal with the details of the budget during the fiscal year violates some fundamental principle or policy of budget making ignores the fact that the courts have long upheld the same power of department heads to reduce the salaries of their employees whenever they see fit, provided only that they do not violate some express statutory prohibition. (Cf. Thomas v. City of New York, 263 N. Y. 402.) The effect of section 68 is to vest now in the Board of Estimate a power no greater than that which has always been recognized to belong to the heads of departments. Furthermore, other provisions of the charter confirm this construction of section 68 in reference to the power to deal with positions and grades. Sections 123, 127 and 128 furnish power to the Board of Estimate to transfer appropriations, provided the total amount of appropriations is not exceeded. Thus, sections 123, 127, 128, 67 and 68 evidence a design to make the budget elastic within the confines of the total amount appropriated.

It has been suggested that the city is without power to fix the salary at so unreasonably low a figure that the office created by statute would be destroyed for all practical purposes. But petitioners do not contend that such is the present case.

It follows that the order appealed from should be modified and the petition dismissed as to all.

Rippey, J.

(dissenting in part). This case involves the compensation payable to sixty-eight clerks to the justices of the Municipal Court of the City of New Y ark. Of this number, fifty-seven were appointed to their positions prior to January 1, 1938, at a salary of $3,240 per year; seven were appointed to existing vacancies between January 1, 1938, and March 1, 1938, upon certificates of the Director of the Budget that the vacancies might be filled and that a $2,000 per year salary only could be paid; and four were appointed after March 1, 1938, upon certificates of the Director of the Budget under a resolution by the Board of Estimate of the City of New York, passed on February 28, 1938, that a salary of $1,200 per year only should attach to the position. By the same resolution of the Board of Estimate the salaries of the other sixty-four were reduced to $1,200 per year each. This proceeding is brought to compel restoration of the salary of $3,240 to each position and for recovery by incumbents of the difference between that salary and the $1,200 which the city has paid.

It was held by the Special Term that any of the petitioners who had received the $1,200 salary and had failed to sign the payroll under protest, as required by section 93c-2.0 of the Administrative Code of the City of New York, could not maintain an action to recover the difference between the amount received and the amount of salary attaching to the position for the period covered by the particular payroll not protested and, as to that portion of the order, the Appellate Division has affirmed. The Special Term further held that, except so far as petitioners had failed to protest the amounts received, each was entitled to recover the difference between the amount received from the city and the pro rata amount which he was entitled to receive at the salary of $3,240 per year. The Appellate Division modified so much of that portion of the order of the Special Term as applied to ten occupants of the position of clerk appointed subsequent to January 1, 1938, to fill vacancies then existing, and, as to them, held that they were entitled only to the salary as fixed by~¡the Budget Director as to six and by the Budget Director upon the resolution of the Board of Estimate as to four. By cross-appeals the parties are severally bringing up for review those portions of the order of the Appellate Division by which they are adversely affected. I am of the opinion that the order of the Special Term was, in all respects, correct.

Under section 93c-2.0 of chapter 5 of the Administrative Code of the City of New York (Laws of 1937, ch. 929, in effect January 1, 1938), each person receiving a salary from the city treasury is required to sign and receipt the payroll. It is further provided that any such person who shall “ sign the receipt upon such payroll as having received • the amount therein mentioned in full payment for services rendered by him for the entire time specified in such payroll, shall be deemed to have made an accord and satisfaction of all claims against the city for wages or salary due to such person from the city for the period covered by such payroll, unless at the time of signing such payroll the person receiving such wages or salary shall write legibly thereon in connection with his receipt that the amount received is received -under protest.” In Quayle v. City of New York (278 N. Y. 19) we held that section 149 of the old charter (Laws of 1901, ch. 466, as amd.), being the same as section 93e-2.0 of the Administrative Code, if constitutional, must be enforced according to its terms, notwithstanding the salary of plaintiff, a sheriff, was fixed by statute, and in Matter of Shevlin v. LaGuardia (279 N. Y. 649) we held that section 149 was constitutional and was applicable to Supreme Court attendants. The same conclusions must necessarily follow as to the constitutionality of section 93c-2.0 of the Administrative Code and as to the application of its provisions to the petitioners here.

The position of clerk to each justice of the Municipal Court of the City of New York was created by the State Legislature in chapter 235 of the Laws of 1929. By that act it was further provided that power of appointment should reside in the justice and that the appointee of each justice should hold office during his pleasure but that the salary of the clerk should be fixed by the Board of Estimate and Apportionment of the city. By the provisions of section 957 of the new charter (in effect January 1, 1938) the Board of Estimate became the successor of the Board of Estimate and Apportionment. Acting upon the legislative mandate, on at least eight successive occasions the Board of Estimate and Apportionment determined that the requirements of the position commanded a salary of $3,240 per year. During the latter part of 1937 the salary of each of the sixty-eight positions was duly fixed by the Board of Estimate and Apportionment for the year 1938 and for the first six months of 1939 at $3,240 per year, and such salaries became a part of the budget duly adopted for that period.

The first attempt that was made to reduce the salaries of the clerks then in office was made on January 3, 1938, when the Board of Estimate passed a resolution fixing the salary for the office at $2,000 per year. Such resolution was ineffective to accomplish the purpose of reducing the salary from the amount fixed in the budget adopted in December, 1937. (Dixon v. LaGuardia, 277 N. Y. 84.)

Next, as to each appointee to fill a vacancy in the office of clerk, it was asserted and still is insisted that he must secure a certificate from the Budget Director fixing his salary and authorizing his appointment. The 1938 budget provides that a vacancy can be filled only upon application of the head of the department, board, bureau or office to the Budget Director, who may, in his discretion, grant the application and fix the salary to be paid to the appointee or deny the application. If the application is granted he must issue his certificate in which he names the appointee and fixes his salary. The Comptroller is forbidden to authorize the payment of salary to any such- appointee unless and until such a certificate is filed with him. The defendants seek to maintain that appointments made after January 1, 1938, to fill vacancies in the office of clerk to justices of the Municipal Court must follow the procedure there outlined and that no appointee may receive any greater salary than that authorized in the Budget Direct- or’s certificate. The power to fill a vacancy in any one of those positions resides exclusively in the justice who is without a clerk owing to the existence of such vacancy. The Legislature gave no power to the Budget Director to determine whether such vacancy should be filled or whom should be appointed or to fix or reduce the salary of an appointee or to the Board of Estimate or to the budget makers to delegate any such authority to him. Furthermore, the justice of the Municipal Court is not the head of a department, board, bureau or office within the meaning of those provisions. The Municipal Court is a continuation of what was formerly the District Court of the City of New York (Worthington v. London G. & A. Co,, 164 N. Y. 81), and clerks to the justices are judicial officers, not city employees (Whitmore v. Mayor, 67 N. Y. 21) to whom alone those provisions of the budget, if valid, relate.

Finally, defendants rest upon the resolution of the Board of Estimate, passed on February 28, 1938, whereby all salaries for the position of clerk to the justices of the Municipal Court as contained in the 1938 budget were eliminated and a new salary for each of the positions of $1,200 per year as of March 1, 1938, was substituted. The salaries for several hundred other positions were increased or reduced or the positions abolished. The resolution, as far as it went, was in effect the making of a new budget by the Board of Estimate alone without resort to the budget-making machinery provided for in sections 952 and 111-126, inclusive,, of the charter. Authority is claimed to be found for that procedure in sections 67 and 68 of the new charter.

With certain exceptions not here pertinent, section 67 vests power in the Board of Estimate to fix the salary of every officer or person whose compensation is paid out of the city treasury. It relates only to the compensation to be paid to city employees. As to clerks to the justices of the Municipal Court, the section, if applicable at all, extends no new power to the Board of Estimate or any power different or more extensive than that given to that Board by the statute creating the position. The salaries to be paid were incidental only to the positions created by the Legislature. They followed and became part of the positions themselves. When the Legislature left it to the Board to fix the salaries the Board was required to act in such a way as to provide adequate compensation for the clerks. The Board could not, in the face of the expressed purpose of the Legislature to provide a clerk for each justice, practically nullify that purpose by fixing the salary at so small a sum that the justice would be unable to secure a competent clerk. The Board of Estimate, taking office January 1,1938, derived no power to set aside the provisions of the budget fixing such salaries by virtue of any provision of section 67 of the new charter.

Neither did the provisions of section 68 give the Board any power to fix, modify or reduce such salaries so fixed by the budget. That section reads as follows: “ Creating, abolishing or modifying positions and grades. § 68. The board of estimate may at any time, subject to the provisions of this charter and of the civil service law and except as otherwise provided by statute, create, abolish or modify positions and grades of persons paid from the city treasury.” Neither by words nor by necessary inference does it authorize the fixing, increasing or reduction of salaries already fixed in the current budget for positions named therein. By its express words it authorizes the Board, where it is applicable at all, only to create, abolish or modify positions and grades of persons.” Power was conferred to create new positions and grades of persons, and when that was done the Board, under section 67, was given the power to fix salaries therefor. That it does not provide for or contemplate the creation of any power to increase salaries fixed by the current budget for positions provided for therein is clearly and conclusively shown by the fact that under section 67-2.0 of the Administrative Code the Legislature separately gave that power to the Board. It was not an emergency measure and it creates no emergency powers.

So far as the provisions of sections 67 and 68 have to do with the fixing of salaries, when read, as they must be, in connection with the provisions of the charter relating to the preparation and making of the budget and of the Administrative Code and having in mind the purposes of the budget when finally adopted, they relate only to the fixing of salaries for positions at the time of the preparation of the budget providing for those positions in connection with the implied power under section 125,' and then only subject to action by the Council and by the Mayor under sections 124 and 125, or for new positions created at any time after the adoption of a particular budget and before the adoption of its successor for a subsequent year. It cannot be presumed that the intent and purpose of those sections was to enable the Board of Estimate, in practical effect, at any time to nullify the purpose designed to be accomplished by the careful, well-considered and laborious preparation of the budget and thus to abrogate or hold at naught those provisions of the charter setting up the budget-making machinery (Cf. Schieffelin v. Leary, 219 App. Div. 660) or to make salaries attaching to positions duly created in a definite budget for a definite and predetermined period subject to adjustment, upwards or downwards, from time to time, or at any time, as the occasion or the whim or caprice of a Budget Director or the Board of Estimate might suggest. To hold otherwise would mean that the Board of Estimate alone could overthrow a budget completely the day following its effective date or at any subsequent time and thereby nullify the purpose and effect of the executive budget, the right of the public to notice and to be heard when positions are established and salaries fixed and the authority of the Mayor and the Council over such positions and salaries after the Board of Estimate has done its work. I am not prepared to accept any conclusion that makes the provisions of the charter for the preparation, adoption and finality of the budget so meaningless.

The order of the Appellate Division, in so far as it modified the order of the Special Term, should be reversed and, as so modified, the order appealed from and the order of the Special Term affirmed, with costs to the petitioners in this court and in the Appellate Division.

Crane, Ch. J., Lehman and Hubbs, JJ., concur with Loughran, J.; Finch, J., dissents in part in opinion, in which O’Brien, J., concurs; Rippey, J., votes for modification in separate opinion. (See 280 N. Y. 707, 846.)

Order affirmed.


author: O’Brien, J.

text:
    Isidor Wels, Appellant, v. Maxwell Rubin, Defendant, and James F. Egan, Respondent.
    Argued February 24, 1939;
    decided April 11, 1939.

      Isidor Wels, appellant, in person.
    It is actionable libel, and not privileged, to say of a lawyer who is not a party to a judicial proceeding and against whom no claim or demand is made, that with his “ aid, consent, advice and co-operation,” a trustee of an estate withdrew and converted large sums of money, and that the attorney improperly represented both the trust estate and other parties dealing with it, when their interests were adverse. (Moore v. Manufacturers Nat. Bank, 123 N. Y. 420; Davis v.
      Crandall, 101 N. Y. 311; Battu v. Smoot, 211 App. Div. 101; Lesser v. International Trust Co., 175 App. Div. 12; Anonymous v. Trenkman, 48 Fed. Rep. [2d] 571; Gilbert v. People, 1 Den. 41; Pecue v. West, 233 N. Y. 316; McLaughlin v. Cowley, 127 Mass. 316; California Packing Corp. v. Kelly S. & D. Co., 228 N. Y. 49; Sherman v. International Publications, Inc., 214 App. Div. 437.)

      E. Crosby Kindleberger, Emanuel Kintisch and Philip A. Paulson for respondent.
    The alleged libelous statements contained in respondent’s objections were pertinent and material, and, therefore, absolutely privileged. (Meinhard v. Salmon, 249 N. Y. 458; Magruder v. Drury, 235 U. S. 106; Jackson v. Smith, 254 U. S. 586; Gould v. Gould, 108 Misc. Rep. 42; 203 App. Div. 807; Pyle v. Pyle, 137 App. Div. 568; 199 N. Y. 538; Tracy v. Willys, 45 Fed. Rep. [2d] 485; Holman v. Ryon, 56 Fed. Rep. [2d] 307; Savage v. Gould, 60 How. Pr. 217; Link v. Moore, 84 Hun, 118; 156 N. Y. 661; Matter of Hyde, 149 Misc. Rep. 291; Matter of Gauthier, 143 Misc. Rep. 788; National Surely Co. v. Manhattan Storage Co., 185 App. Div. 733; 230 N. Y. 545; Andrews v. Gardiner, 224 N. Y. 440; Lesser v. International Trust Co., 175 App. Div. 12; People ex rel. Bensky v. Warden, 258 N. Y. 55.)
   O’Brien, J.

This is an action for libel. The defense is absolute privilege. On this appeal we are concerned only with the first cause of action. Defendant Rubin is not here represented. The parties before us are .appellant Wels and respondent Egan.

The question of law is whether the matters alleged by defendant to be privileged are relevant and material. The alleged libelous statements occurred in the course of a proceeding before the Surrogate of Kings county relating to the settlement of the accounts of Francis E. Laimbeer, as executor and trustee under the will of Henry Grube. Defendant Egan, Public Administrator of New York county, was appointed by the Surrogate of New York county administrator of the estate of Henry Grube’s brother, Herman, wMch claimed an interest in the estate of Henry. Defendant Egan, represented by defendant Rubin as his attorney, filed objections to the accounts of Laimbeer. In these objections they stated that Laimbeer, as executor, wrongfully withdrew funds from the estate of Henry Grube and used them for his own purposes and that these unlawful practices by Laimbeer were accomplished by the aid, advice and co-operation of plaintiff Weis and his partners, who acted as attorneys for Laimbeer.

Defendant Egan moved under rules 113 and 114 of the Rules of Civil Practice for summary judgment dismissing the first cause of action. Special Term denied this motion, but the Appellate Division reversed, dismissed the first cause of action as against Egan, severed the action, and directed that plaintiff might proceed against Egan as to the second cause of action.

Weis was not a party to this proceeding in the Kings County Surrogate’s Court and no relief was asked as against him. The relevancy or materiality of these assertions against him is difficult to discover. (Moore v. Manufacturers Nat. Bank, 123 N. Y. 420, 427.) The objections were directed against the accounts of Laimbeer, who was a party, and he would be hable for bis misconduct, irrespective of advice of counsel.

The judgment of the Appellate Division should be reversed and the order of Special Term denying defendant’s motion to strike out plaintiff’s first cause of action affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Hubbs, Loughban, Finch and Rippey, JJ., concur.

Judgment accordingly.


author: Finch, J.

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    In the Matter of Alfred J. Thomas, Respondent, against Paul J. Kern et al., as the Municipal Civil Service Commission of the City of New York, Appellants. In the Matter of Jacob Grobisen, Respondent, against Paul J. Kern et al., as the Municipal Civil Service Commission of the City of New York, Appellants. In the Matter of Samuel Bress, Respondent, against Paul J. Kern et al., as the Municipal Civil Service Commission of the City of New York, Appellants.

      Argued March 3, 1939;
    decided April 11, 1939.

      William C. Chanler, Corporation Counsel (Jeremiah M. Evarts and Paxton Blair of counsel), for appellants.
    The Civil Service Commission properly exercised its discretion in providing a credit for educational training in relevant fields. Such training bears directly upon qualifications for the position and constitutes a valid test of relative merit and fitnéss for the position. (Matter of College of City of New York v. Hylan, 205 App. Div. 372; 236 N. Y. 594; Stuart v. School District, 30 Mich. 69; Matter of Benedetto v. Kern, 167 Misc. Rep. 831; 255 App. Div. 753; 279 N. Y. 798; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Matter of Barthelmess v. Cukor, 231 N. Y. 435.) The Commission properly exercised its discretion in providing a credit for athletic training. Such training bears directly upon qualifications for the position and constitutes a valid test of fitness. (People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Matter of Barthelmess v. Cukor, 231 N. Y. 435.) The Commission properly fixed the maximum age of twenty-nine for the lists. Appointments from such lists do not violate the Civil Service Law (Cons. Laws, ch. 7, § 25-a). (Matter of Laverty v. Finegan, 249 App. Div. 411; 275 N. Y. 555.)

      Albert De Roode for Alfred J. Thomas, respondent.
    The giving of a preferred “ credit ” or bonus on a discretionary and undisclosed scale for collegiate education and organized athletic experience as a means of emasculating the competitive rating violates the requirement for competition. (Matter of Fink v. Finegan, 270 N. Y. 356; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of O’Callaghan v. Finegan, 276 N. Y. 587.)

      Thomas Bress and Sol Drescher for Jacob Grobisen et al., respondents.
    The grant of bonus credits for college training and for formal disciplined athletic training impairs the competition required by the State Constitution (Art. 5, § 6). (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Matter of Sheridan v. Kern, 166 Misc. Rep. 920 ; 255 App. Div. 57; Matter of O’Callaghan v. Finegan, 166 Misc. Rep. 556; 276 N. Y. 587.) The fixing of twenty-nine years as the maximum age limit for special patrolman and patrolman, P. D., special fist, is in violation of section 25-a of the Civil Service Law. (Matter of Sloat v. Board of Education, 274 N. Y. 367.)

      Leopold V. Rossi for Civil Service Forum, amicus curiæ.

    Any preferences, other than to disabled World war veterans, are unconstitutional and violate section 6 of article 5 of the State Constitution. (Matter of Sheridan v. Finegan, 166 Misc. Rep. 920 ; 255 App. Div. 57; People ex rel. Fowler v. Moskowitz, 175 App. Div. 710; 220 N. Y. 669; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Aversa v. Finegan, 164 Misc. Rep. 162; 275 N. Y. 512; Matter of Sullivan v. Finegan, 163 Misc. Rep. 755; 275 N. Y. 479; Matter of O’Callaghan v. Finegan, 276 N. Y. 587.)

      James H. Tully for Patrolmen’s Benevolent Association of the City of New York, amicus curiæ.

    The proposal to weigh college training and disciplined formal athletic training is unconstitutional and in conflict with the Civil Service Law. (Matter of O’Callaghan v. Finegan, 166 Misc. Rep. 556; 276 N. Y. 587; Matter of Sheridan v. Finegan, 166 Misc. Rep. 920; Matter of Barthelmess v. Cukor, 231 N. Y. 435; People ex rel. Kennedy v. Feldman, 179 App. Div. 295; Matter of Ryan v. Finegan, 166 Misc. Rep. 548; 253 App. Div. 713.) The creation of patrolman, P. D., special list, is unconstitutional and contrary to the Civil Service Law and the Administrative Code (L. 1937, ch. 929). (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Fink v. Finegan, 270 N. Y. 356.)
   Finch, J.

In this proceeding the Municipal Civil Service Commission has been enjoined from certain acts in connectian with the holding of a proposed examination for policemen.

There are three principal questions presented for decision as follows: (1) Whether the provision of a credit for educational training in relevant fields was so arbitrary and unreasonable as to be without the sphere of the proper exercise of judgment by the Municipal Civil Service Commission; (2) a similar query with reference to a credit for organized athletic training; and (3) whether the fixing of a maximum age limit of twenty-nine years for the list of special patrolmen violated section 25-a of the Civil Service Law (Cons. Laws, ch. 7).

Facts sufficient to indicate briefly the grounds for the decision are as follows:

This proceeding seeks to cancel the notice of examination published by the Commission on December 1, 1938, from which examination it was intended to promulgate three lists: Patrolmen P. D., Patrolmen P. D., Special List, and Special Patrolmen.

The rating will be on a percentile basis. The 3,600 candidates having the highest marks in this written test will stand in the order of comparative rating. Such test will have a weight of .7. This first examination will be designed to weigh the essential qualifications of aptitude, common sense, initiative, intelligence, judgment and reasoning ability. Still maintaining the procedure of anonymous rating of the candidates, credit on a competitive basis will be added, not exceeding .04 of the weight of the mental test of .7 or .028 of the total weight, to the mental average of each successful candidate because of formal education of college grade in a relevant field at an institution accredited by the University of the State of New York. This credit will not affect the passing mark and will be awarded only to the 3,600, and then on a uniform basis for chemistry, engineering, law, languages, physics, social work, sociology and other relevant courses. The 3,600 will likewise receive competitive credit for a physical test, which will have a weight of .3. Credit not to exceed .04 of the weight of the physical test, or a total of .012 of the total weight, will be added competitively for disciplined formal athletic training in amateur, college or professional athletics of an organized character. Out of the 3,600, the 1,200 candidates who receive the highest final average will, in the order of competitive rating, constitute the eligible list of Patrolman P. D. The 1,200 who receive the next highest final general average will, in the order of competitive rating, constitute the eligible list of Special Patrolmen for the Board of Water Supply, Board of Transportation, etc. Persons appointed from this Special Patrolmen List will not be eligible for transfer to the Police Department. Those of the 3,600 who score eighty per cent or better on the mental test will be added to the first 1,200 and together they will constitute an eligible fist of Patrolmen P. D., Special List. For this third list there will be a waiver of height, weight and physical requirements. Their rank will be in the order of their mental scores.

In providing a credit for educational training or for organized athletic training in relevant fields, has the Municipal Civil Service Commission gone outside the proper field for the exercise of judgment by an administrative body? We think not. All are agreed that in order to maintain law, order and adequate protection for society against modern, organized criminals in the cities of the country, and particularly in the city of New York, the Police Department needs a personnel as able as it is possible to obtain. It is conceded in the brief of petitioner that the candidate with college training “ has an advantage in equipment.” In this attempt to meet the needs of the present, the examination seeks to apply competitively two areas of competence and equipment for the position in the form of a credit for training in education in relevant fields and in organized athletics. The credit in education is not given for a college degree, but for training in education in subjects important in the work of the Police Department, and is added after and only provided the mental test has been passed' successfully. The maximum credit which can be received for educational training is only .028, and it is highly improbable that any candidate will have received educational training in all relevant subjects and be thus entitled to this maximum credit. Likewise the maximum credit for training in organized athletics is only .012. The final result reached.departs in no way from the competitive principle and from the usual case in which, after a competitive score is arrived at on a mental test, another competitive score is reached on an experience and education test, and the two competitive scores combined in certain prescribed weights, furnish a third and final competitive score. A person who has had such training in a relevant field will, for that reason, make a more useful policeman. To provide a credit for such training complies with the provisions of the Civil Service Law which provides the examinations * * * shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed.” (Civil Service Law, § 14.) It is urged, however, that we must hold as a matter of law that a credit for college training in a relevant field cannot be given upon the ground that it is not the equivalent of experience. Free college education is afforded by the taxpayers of the city of New York to poor and rich alike, in order to fit the persons receiving it for positions in life. The laws provide many examples where college training in a relevant field is accepted as legally interchangeable with experience. In examinations for license as professional engineers, the Board of Examiners may accept a complete year of study in a registered college in lieu of one year of experience, and may exempt from a part of an examination a graduate of a college maintaining satisfactory standards. (Education Law [Cons. Laws, ch. 16], § 1452.) In the licensing of plumbers, ten years’ experience may have as a substitute three years’ experience together with a technical degree in engineering from a college or university approved by the Regents of the University of the State of New York. (Charter of the City of New York, Laws 1901, ch. 466, amd. by L. 1936, ch. 610, § 1575; see now § 816-3.0 of Administrative Code of City of New York [L. 1937, ch. 929].) In admissions to the bar, college training is a substitute for actual experience in a law office. An enlightened public interest demands that professional men be educated in the duties of their professions. In the Police Department educational training and training in organized physical activities are required not only because of the availability of modern inventions and free education to persons without character who plan and engage in organized crime and,-therefore, compel equally well-trained patrolmen to cope with them, but because under the system of promotion in the New York Police Department all officers must be taken from the ranks. In other departments of the city, incumbents of higher positions on the other hand are chosen only after competitive examinations. If frustrated in the attempt to obtain better equipped patrolmen, will not the force of public opinion demand competitive examinations for officers in the Police Department? In People ex rel. Moriarity v. Creelman (206 N. Y. 570, 577) this court held that the Civil Service Commission, representing the public did have the right to require that before appointment * * * fitness should be measured and established by any test honestly and reasonably appropriate to that end * * It is urged, however, that a credit for educational training in a relevant field constitutes a preference or bonus. This is not so for the reason that a preference or bonus is an arbitrary award given without reference to qualifications for the position, whereas a credit for educational training in a relevant field or for training in organized athletics, is based upon qualifications and, therefore, does not constitute a preference or bonus. (Cf. Matter of Barthelmess v. Cukor, 231 N. Y. 435.) It is urged that the giving of a credit for educational training in a relevant field arbitrarily favors someone on the list as against others. This fails to. take into account the fact that the application of the credit is competitive, that it is figured from an anonymous sheet, so as to preserve the anonymity of the candidate, and that, like every test of relative merit and fitness, the final score of every candidate is affected. It appears in the record that educational training has always been used as a test of merit and fitness in examinations. In examinations for X-ray technicians, education and experience receive a weight of 4; junior civil service examiner, a weight of 3 for education and experience; junior electrical engineer, grade 3, a weight of 3 for education and experience. In the last examination for fireman F. D., a credit of not more than five per cent was given to successful candidates who possessed relevant engineering degrees from accredited institutions. Moreover, the credit was given in the precise manner here adopted.

At Special Term it was urged that credit for training in organized athletics was limited to college or professional athletics. It is clear, however, from the language used, that it was not so limited but includes credit for participation in organized athletics in or out of college.

It, therefore, follows that the Municipal Civil Service Commission was not arbitrary or unreasonable when it arranged for a credit for educational training in relevant fields or for organized athletic training so as to require judicial reversal of the action of the Commission.

It has been urged that to create the Patrolmen P. D., Special List, would offend section 434a-3.0 of the Administrative Code in regard to the organization of the Detective Bureau in the Police Department. Whether appointments from such list may be made to the Detective Bureau is not now before this court. For the present it is sufficient to say that the mere promulgation of the list does not injure the petitioners.

The establishment of a list for special patrolmen for such positions as are properly open for appointment from that list, and the fixing of a top age limit of twenty-nine lies within the judgment and discretion of the Municipal Civil Service Commission, as does also the establishment of a Patrolmen P. D. List of short duration, the holding of mental tests in advance of the physical test, and the creation of multiple lists from this examination.

In each proceeding, the orders appealed from should, therefore, be reversed and the applications denied, without costs, in accordance with this opinion. (See 280 N. Y. 813.)

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Rippey, JJ., concur.

Ordered accordingly.