Morin v. Foster

Cooke, J.

(concurring). I concur in the opinion of Judge Gabrielli for affirmance.

I would add that Local Law No. 1 of 1978, in dispute, both curtails and increases the power of county legislators in Monroe County, depending on where the wheel stops. If viewed from the position of the legislators at the time of appointment of a county manager, their power is curtailed or diminished insofar as the term to which the legislators may appoint is shortened. If measured at a point after an appointment has been made, power may be said to have been increased in the sense that an incumbent county manager would serve only at the pleasure of the legislature. Since there is a curtailing of power in a definite respect, regardless of whether in another aspect power may be increased, an opportunity for a permissive referendum is required (NY Const, art IX, § 1, subd [h], par [2]; Municipal Home Rule Law, § 34, subd 4; Monroe County Charter, § 1405).