(dissenting in part). The amended petition is legally insufficient. It seeks to compel the municipal civil service commission, the Mayor and the State Civil Service Commission to amend the rules and classification of position of the municipal civil service commission so as to eliminate the maximum and minimum rates of compensation now prescribed for car maintainers, group D, and to substitute in place thereof prevailing rates of wages; and to compel the city comptroller to determine the rate of compensation for car maintainers, group D, under the prevailing rate of wages law (Labor Law, § 220), and to compel the New York City Transit Authority to pay petitioners the prevailing rates so determined.
Thus it endeavors to establish that petitioners are entitled to be paid the prevailing rate of wages and that the basic 1943 civil service grading resolution and subsequent grading resolutions fixing specific salary limits for the position of car maintainer, group D, are illegal. However, this court and the Court *675of Appeals have already held in Matter of Corrigan v. Joseph (304 N. Y. 172, modg. and affg. 278 App. Div. 798, motions for reargument or amendment of remittitur denied 304 N. Y. 759, motion for certiorari denied 345 U. S. 924) that the 1943 resolution lawfully placed this position in the graded service and thereby excluded it from the purview of the prevailing rate of wages law.
Furthermore, the proceeding is barred by the Statute of Limitations. The amended petition reveals on its face all facts establishing that this proceeding was begun many years after the adoption of the resolutions, including the 1943 resolution, which petitioners are attacking. Where, as here, a petition in an article 78 proceeding shows on its face that it was brought more than four months after the determinations challenged, a motion made under section 1293 of the Civil Practice Act to dismiss the petition must be granted (Matter of Mahony v. Conway, 281 App. Div. 1057; Matter of Endig v. McGoldrick, 282 App. Div. 677; Matter of Twomey v. McNamara, 195 Misc. 285). The grading and salary-fixing resolution adopted on February 25, 1943, was a determination which involved the exercise of judgment or discretion within the meaning of subdivision 2 of section 1284 of the Civil Practice Act and cannot be reviewed for alleged arbitrariness after the lapse of the four months’ period of its effective date (Civ. Prac. Act, § 1286; Matter of Weldon v. Rheinstein, 283 N. Y. 753; Matter of Cravatts v. Klozo Fastener Corp., 282 App. Div. 1014; Matter of Miller v. Bromley, 184 Misc. 676; Matter of De Wyrall v. McNamara, 198 Misc. 325; Matter of Twomey v. McNamara, 195 Misc. 285, supra).
True, where a salary-fixing act is totally illegal as being beyond the power of the officials sued, the doctrine of a continuing right to demand compliance with the statute is applicable (Toscano v. McGoldrick, 300 N. Y. 156, 160). However, our case is not in that category. In the Corrigan case, the Court of Appeals decided that the municipal civil service commission had full power to grade positions by the February, 1943, resolutions and, thus, to remove those positions from the purview of the prevailing-rate law. Furthermore, the Court of Appeals held that the 1943 resolution was, in all respects, valid and not lacking in the base of a wage scale fixation made by the municipal civil service commission and approved by the Mayor and State commission. The observation of the Court of Appeals in that case, contained in its footnote, upon which the petitioners rely (Matter of Corrigan v. Joseph, 304 N. Y. 172, 186) related not *676to the power of the commission to fix grades, but to the claimed arbitrariness of the exercise of that power.
After the decision of the Court of Appeals was handed down in Matter of Corrigan v. Joseph (supra) petitioners moved in that court for reargument. Some of the petitioners, including petitioner Foy herein, requested as relief that the court modify its decision by remitting the matter to Special Term so that such petitioners might join the municipal civil service commission as a party to litigate their claim that the grading of their positions by the resolution finally approved in February, 1943, was arbitrary, or to modify or to amend the remittitur so that it would provide that the decision of the court was without prejudice to an application by such petitioners at Special Term to join the municipal civil service commission as a party and to review the alleged arbitrariness of such grading. An examination of the brief of petitioners in the Court of Appeals in support of that application shows the position they took in the point heading at page 4 of their brief (supplemental brief). In opposing the motion, the city in its brief pointed out to the Court of Appeals that the purpose of that motion was: “ a patent attempt to induce this Court to mislead the Special Term into the belief that this Court had determined that the equivalent of a separate Article 78 proceeding could now be brought to set aside a resolution of the Civil Service Commission adopted more than fourteen years ago, notwithstanding the provisions of Civil Practice Act § 1286, which requires review of the action of an administrative body to be brought within four months after such action. See Matter of Sullivan v. Williams, 303 N. Y. 871 (1952) cited by this Court in the footnote to the opinion in this case to which we have already referred * * * J?
“ Movants, well recognizing that any attempt to review the action of the Civil Service Commission on the ground of arbitrariness or caprice was long ago barred by the statute of limitations, are trying to revive their dead cause of action through the offices of this Court.”
The Court of Appeals declined to amend the remittitur and denied the motions (Matter of Corrigan v. Joseph, 304 N. Y. 759, supra). This disposition made it quite clear that the Court of Appeals would not countenance an obvious attempt to circumvent the four-month period of the Statute of Limitations.
It would seem, therefore, as determined by the Court of Appeals, that there was no such defect in the 1943 resolution as the majority of this court now finds to have existed, and that *677it is not subject to the attack which the majority would now allow.
With respect to the subsequent resolutions fixing wage scales adopted by the board of transportation with the approval of the municipal civil service commission, though there was a failure to publish notice of hearings and to hold such hearings prior to their adoption and approval, and though they were not thereafter formally approved by the Mayor or the State Civil Service Commission, these resolutions provided increased wage scales to petitioners. Such resolutions are not subject to challenge for the reasons heretofore stated. Moreover, if they were rescinded, the salaries of petitioners would revert to the scale fixed by the resolution legally adopted and approved on February 25, 1943. This would serve no useful purpose. It would simply mean that petitioners are validly graded as of February 25, 1943 (Matter of Corrigan v. Joseph, supra) and that every rate increase granted to them since that date has been improperly paid to them. In any event, even if the resolutions were invalid, their invalidity could not taint the valid gradings provided for in the resolution of December 29, 1942, approved by the Mayor on February 2, 1943, and the State Civil Service Commission on February 25,1943.
For the foregoing reasons, the order should be reversed and the amended petition should be dismissed.
Bastow and Botein, JJ., concur with Breitel, J.; Cohn, J., dissents, in part, in opinion in which Peck, P. J., concurs.
Order, so far as appealed from, reversed, with $20 costs and disbursements to the appellants, and the petition dismissed, with leave to the petitioners to serve an amended petition.