(dissenting). The respondents on this appeal are justices of the Supreme Court in the first and second judicial districts of New York. The appeal is from an order of the Supreme Court, at Special Term, New York County, directing appellants, constituting the Board of Estimate of the City of New York, to provide for payment to respondents of the difference between additional compensation at the rate of $10,000 per annnm and the amount heretofore paid to each respondent as additional compensation for his services as a justice of the Supreme Court. The order appealed from invalidated a resolution adopted by the Board of Estimate which purported to provide additional compensation to justices elected or appointed after November 2, 1939, at the rate of $7,500 per annum instead of $10,000 per annum as theretofore provided. *580The proceeding below was brought under article 78 of the Civil Practice Act to compel the members of the Board of Estimate to perform a duty alleged to be specifically enjoined upon them by law.
The salary of each trial justice of the Supreme Court as paid by the State is now $15,000 a year. The power to fix such salary rests in the Legislature, as provided in the State Constitution (art. VI, § 19), and such power is plenary so far as the Legislature is concerned, except as it is restrained by the constitutional prohibition that the salary of a justice shall not be reduced during the term of his office. Since 1852, in the case of the first district, and for many years in'the case of the second, the City of New York, under authority granted by the Legislature by way of various statutes, has paid to justices residing in the first and second districts annual compensation in addition to that paid by the State to all justices. (L. 1852, ch. 374, § 7; L. 1882, ch. 410, § 1108; Judiciary Law, 1909, § 143 as amd. by L. 1928, ch. 818; L. 1941, ch. 290, § 8.) From 1909 to 1930 such additional compensation was fixed at $7,500 per annum, and in 1930 was increased to $10,000. Then, on November 2, 1939, the Board of Estimate sought to reduce the amount to $7,500 for justices thereafter appointed or elected. It is the resolution which purported to make this reduction that has been held invalid by the Special Term.
The grant of authority delegated to the Board of Estimate 'is presently found in section 143 of the Judiciary Law which reads in part: “ The board of estimate of the city of New York may provide * * * for payment to the justices of the supreme court resident in the first and second judicial districts * * * such additional compensation as such board may deem proper ”.
This section, however, must be read in connection with section 142 which states in part: “ Each justice of the supreme court shall receive from the state the sum of fifteen thousand dollars per year. Those justices elected in the first and second judicial departments shall continue to receive from their respective cities, counties or districts, as now provided by law, such additional compensation as they are now receiving therefrom * * *. The provisions of this section shall apply to the justices now in office and to those hereafter elected or appointed ”.
This section was added by the Laws of 1926, chapter 155, section 2 and amended by the Laws of 1928, chapters 804 and 819 and Laws of 1929, chapter 464, section 1, in effect April 10,1929.
Appellants contend that these sections delegate to the city *581the power to increase or decrease additional compensation, in its discretion, over and above a minimum of $7,500 a year. The minimum is stated in that amount because at the time section 142 was enacted in 1926, and at the time of the last amendment in 1929, such additional compensation was being paid at the rate of $7,500 a year, and the intent of the section was to prohibit reduction of additional compensation below this amount.
The respondents contend that this construction is erroneous on the basis that it is impossible for justices elected after April 10,1929, to continue to receive the additional compensation they were receiving on that date, for justices thereafter elected were not receiving any compensation on that date. This reasoning appears to us to be strained and laborious. As we read the section it simply means that the justices in office at the time of the enactment of the section, or at the date of its last amendment, were to receive the additional compensation then in effect, and that all justices thereafter appointed or elected were to receive a like amount. Beyond this we cannot perceive any restraint on the Board of Estimate to exercise its discretion under the authority granted in section 143. If, as a matter of law, a discretion once exercised could never thereafter be changed as to newly elected justices then there was no occasion for the enactment of those provisions in section 142 which we have just quoted. The very fact of their enactment seems rather clear proof to us that the Legislature did not consider its grant of power to the city to provide additional compensation, in existence for more than three-quarters of a century, limited solely to increases.
We agree with the court below that “ it is repugnant to sound principles of judicial administration to have justices performing the same functions and carrying the same responsibilities receiving different compensation ” (182 Misc. 507, 511), but we are confronted with a question of power flowing from legislative enactment which precludes any decision on a basis of what we may think is wise and proper. We know of no legislative or constitutional prohibition in this State against classifying the justices of the same court on a salary basis as of the time of their appointment or election. We do not view the cases cited as authorities for restraint in this phase of the matter under the statutory situation that exists here. In the absence of such restraint the vice inherent in such a situation can only be cured by the Legislature.
Respondents challenge the modifications of the original resolution of 1939 by the resolutions of 1941 and 1942, which provide *582that the $7,500 rate should be inapplicable to any justice assigned to the Appellate Division, or to any justice who was in office on July 1,1939. We do not feel called upon to pass on the validity of those modifications. Even if they are held invalid, the original resolution reducing additional compensation for new justices would still stand. Respondents’ real complaint is against the original resolution, and it is on the basis of their charge that it was illegal that they, seek to compel appellants to perform a duty enjoined upon them as a matter of law. On that theory we think they failed to make out a case.
The order should be reversed, without costs, and as a matter of law.
Bliss, J., concurs with Heffernan, J.; Brewster, J., concurs in a separate opinion; Foster, J., dissents in an opinion in which Hill, P. J., concurs.
Order appealed from affirmed, with fifty dollars costs and disbursements.