Goldberg v. Beame

Valente, J. (dissenting).

I cannot assent to a decision which, while recognizing that “ petitioner may be equitably entitled to that which he seeks ”, nevertheless would deny him relief. It was inevitable with the extensive reorganization of the court system in this State that situations would arise regarding personnel and procedures not specifically covered by the numerous constitutional and statutory changes. The plight of the instant petitioner stems from one of the inadvertent omissions.

Before September 1, 1962, petitioner was the “ Secretary ” to a Judge of the County Court of Bronx County. With court reorganization, effective on that date, the County Court was abolished, and the County Judge who had appointed petitioner became a Justice of the Supreme Court. Petitioner continued in employment, working for the same Judge; and petitioner thereafter performed the work of a Clerk to a Justice of the Supreme Court. However, it was not until July 1, 1963 that he was paid a salary equal to the salary paid to the other Clerks to Justices of the Supreme Court, First Department. In this proceeding, petitioner merely sought to be paid the difference in salary of a Secretary to a County Judge and a Clerk of a Supreme Court Justice for the 10-month period from September 1,1962 to July 1, 1963.

Section 115 of the Civil Service Law declares it to be the policy of this State “ to provide equal pay for equal work ”. Respondent’s contention, that this policy is only enforcible after application of the classification and grading system, has been sustained by the majority of this court. Whatever may have been said for such an argument, with regard to other nonjudicial personnel who were transferred to other courts as a result of the reorganization, it has no basis in the instant case because there was no question as to petitioner’s classification as a Clerk *524of a Justice of the Supreme Court. In petitioner’s case, classification and grading required only a ministerial act recognizing an unquestionable status. From September 1, 1962 to July 1, ■1963, petitioner could not have been paid any salary as a Secretary to a Bronx County Judge (provided for in section 206 of the Judiciary Law), since the position of such a Secretary had been abolished by the repeal of section 206 as of September- 1, 1962. Failure to set up the mechanics for payment of petitioner’s salary as a Clerk to a Justice of the Supreme Court for the intervening period should not legally or equitably deprive petitioner of the right to compensation received by other Clerks to Justices of the Supreme Court in this Department. I cannot agree that our courts are powerless to correct such a palpable injustice.

I, therefore, dissent and would. affirm the order of Special Term.

Rabin, J. P., McNally, Stevens and Bastow, JJ., concur in Per Curiam opinion; Valente, J., dissents in opinion.

Order and judgment (one paper) reversed on the law, the judgment vacated, and the petition dismissed, without costs and without disbursements.