Levy v. Evans ( 1984 )

— Order and judgment (one paper) of the Supreme Court, New York County (H. Cahn, J.), entered March 23,1983, which granted petitioners’ application and enjoined respondents from implementing a lag of payment of the petitioners’ salaries pursuant to section 5 of chapter 353 of the Laws of 1982, affirmed, without costs. H Subdivision 2 of section 908 of the County Law provides: “Each of the county clerks of the counties comprising the city of New York shall receive an annual salary of not less than the compensation received by a judge of the civil court of the city of New York.” Due to the lag instituted by respondents-appellants, the petitioners would have lost a pay period in December, 1982. Thus, while Judges of the Civil Court of the City of New York received three paychecks in December, 1982, the County Clerks would have been paid only twice and accordingly their gross yearly salary would be reduced below that of a Civil Court Judge. H While the Court of Appeals has stated in Boryszewski v Brydges (37 NY2d 361, 367) that it found nothing in the constitutional provisions on which the petitioners in that case relied “which forbids deferred payment of compensation currently earned”, here the petitioners rely on subdivision 2 of section 908 of the County Law. The respondents-appellants argue that the law must give way to the later-enacted section 5 of chapter 353 of the Laws of 1982, the two laws being claimed to be in irreconcilable conflict (sée McKinney’s Cons Laws of NY, Book 1, Statutes, § 398). 11 We are, however, constrained to avoid irreconcilableness in the construction of laws and aim to reconcile them if that is possible (McKinney’s Cons Laws of NY, Book 1, Statutes, § 398). Here reconciliation is easily effected. Section 5 of chapter 353 of the Laws of 1982 does not authorize the Chief Administrator of the courts to impose a “lag payroll” on the petitioners. It authorizes only “an alternative procedure” to the biweekly payment of their salaries. In the interest of avoiding a repeal by implication — an action held in disfavor by the courts (City of New York v Maltbie, 274 NY 90, 97) — section 5 should be construed to authorize the Chief Administrator to impose not just any alternative pay procedure but one that does not violate subdivision 2 of section 908 of the County Law, as this one does. Concur — Asch, Lynch and Alexander, JJ.