Citation Numbers: 27 N.Y.2d 162, 263 N.E.2d 385, 314 N.Y.S.2d 985, 1970 N.Y. LEXIS 1081
Judges: Burke
Filed Date: 10/7/1970
Status: Precedential
Modified Date: 10/19/2024
In each of these three proceedings, the petitioners are nonlawyer “ Law Secretaries to Justices” of the Supreme Court in either the First or Second Departments. Bach claims that increased salaries were unlawfully withheld from him and they brought the proceedings below in an effort to recover the
In 1961, the Legislature made appropriations for increased salaries for “ certain officers and employees of the judiciary ”. (L. 1961, ch. 492.) An additional increase was similarly provided for in 1962 (L. 1962, ch. 640). The legislation in each of these years contained the proviso that ‘ ‘ any increase in compensation provided for by this act may be withheld in whole or in part from any officer or employee [who], in the opinion of the appropriate appointing authority, does not warrant such increase.” (L. 1961, ch. 492, § 3; L. 1962, ch. 640, § 3 [emphasis added]). On April 8, 1964, the Presiding Justices of the Appellate Divisions, First and Second Departments, sent a letter to the Mayor of the City of New York which in effect stated that the Justices of the two Departments had unanimously agreed, pursuant to the authority of article VI of the Constitution and article 7-A of the Judiciary Law, the “ duty ”, as well as the power, has now devolved upon the respective Appellate Divisions to “ exercise the prerogative of the ‘ appropriate appointing authority ’ to withhold in whole or in part from certain of the nonjudicial personnel of the Supreme Court and of the Surrogate’s Court in counties within the City of New York the salary increases which otherwise would be granted to the particular individuals ” by virtue of the salary legislation referred to above. Attached to the letter was a list of employees as to whom the Appellate Division Justices were so ‘‘exercising the prerogative of the ‘ appropriate appointing authority ’” so as to withhold from them the salary increases provided for by the statutes. Petitioners brought these proceedings to challenge that action upon the ground that the Justices of the Appellate Division, First and Second Departments, were not the “ appropriate appointing authority” insofar as “Law Secretaries to Justices ” of the Supreme Court are concerned. Special Term, in two of the proceedings, agreed with the petitioners and gave judgment accordingly. In the third proceeding, however, Special Term agreed with the respondents and dismissed the petition. The Appellate Division, Third Department, held that all three petitions should have been dismissed.
Resolution of the dispute involves the identity of the "appropriate appointing authority ’ ’ insofar as these petitioners are
Accordingly, the orders of the Appellate Division, Third Department, should be reversed and the petitions granted.
Judges Scileppi, Breitel, Jasen, Marsh,
In Matter of Gilligan: Order reversed, without costs, and petition granted.
In Matter of Mariconda: Order reversed, without costs, and judgment of Special Term reinstated.
In Matter of Serra: Order reversed, without costs, and judgment of Special Term reinstated.
Designated pursuant to section 2 of article VI of the State Constitution in the temporary absence of Chief Judge Fuld and Judges Bergan and Gibson.