Assuming, as held in the opinion of Judge O'BRIEN, that the budget adopted prior to December 25, 1937, is a valid budget, I am unable to agree that that disposes of this appeal or disposes of what has been the issue between the parties ever since the 19th day of October, 1937. On that day, at a meeting of the Board of Estimate in executive session, by a majority vote, the salary of petitioner and of many others was raised. This involved a salary increase of over $800,000. The Mayor of the city duly moved to strike out these increases, the motion was lost, and thereafter the various steps necessary in the making of the budget were taken from time to time over the objection of the Mayor, by the same majority vote. This same issue of the increase of these salaries came before a meeting of the Board of Estimate on January 3, 1938. At that meeting the Mayor offered a resolution reducing these salaries to the amount originally fixed in the tentative *Page 91 budget. This resolution was entitled "Establishment of Positions and Fixation of Salaries," and reduced the salary to that in the tentative budget of every person affected by this controversy. It is true that at the same meeting of the Board of Estimate on January 3, 1938, resolutions were likewise passed adopting the tentative budget of October 6, 1937, as the final budget for 1938. Even if it is held that the vote adopting the budget on January 3, 1938, was ineffective for the reason that the budget adopted prior to December 25, 1937, was the budget for the year 1938, I am still unable to see why the resolution reducing these salaries is not valid if the city of New York has the power under the new charter to reduce at any time a salary paid out of the city treasury.
Let us see whether the city of New York was given such power under the new charter. Under the Greater New York Charter, now called the old charter, the Board of Estimate had the power (with certain exceptions not here material) to fix the salary of every person whose compensation was paid from the city treasury (Greater New York Charter, § 56). This power has been continued in section 67 of the new charter. Whether under the old charter this power to fix salaries could be exercised only in connection with the adoption of a new budget (Cf. Thoma v. City of NewYork, 263 N.Y. 402; Buckbee v. Board of Education, 115 App. Div. 366; affd., 187 N.Y. 544; Sauerbrunn v. Board ofEducation, 150 App. Div. 407; affd., 208 N.Y. 550), it is unnecessary for us to consider for the reason that under the new charter power has been given to the city to reduce the salary of any person at any time (with certain exceptions not here material). Such is the express language:
"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." *Page 92
In addition to the power to create and abolish positions, the city is given the power to modify, which necessarily includes change or modification of salaries. Such power to reduce salaries at any time, and unconnected with the making of a budget, was given by the State Legislature to the city in the emergency of the 1929 depression. Section 68 of the new charter merely eliminates the necessity of the city applying to the Legislature for an enabling act. It is reasonable and natural for the city to possess such power to accompany the responsibility to provide the funds necessary to run the city and maintain its financial stability. Not only has the city the power to regulate salaries at any time (provided the total amount of the budget is not exceeded), but it may even transfer appropriations at any time during the fiscal year. (New Charter, § 127.)
The power of the city to act under section 68 of the new charter has been raised at Special Term and in the briefs upon appeal, and should now be considered.
The order appealed from should be reversed and the petition dismissed.
CRANE, Ch. J., LEHMAN, LOUGHRAN and RIPPEY, JJ., concur with O'BRIEN, J.; FINCH, J., dissents in opinion; HUBBS, J., taking no part.
Order affirmed. *Page 93