Petitioner is an assistant clerk of the Municipal Court of the city of New York. His salary had been duly fixed at the rate of $4,000 per annum from and after July 1, 1937. On October 6, 1937, the Board of Estimate and Apportionment adopted, as the tentative budget for the year 1938, the executive budget which had been submitted by the Mayor. That budget showed in detail the items allowed to the Municipal Court. Public hearings were held on October 13 and October 14. At the hearing on October 13 a representative of clerks *Page 88 and deputy and assistant clerks of the Municipal Court requested that salaries be restored to $4,000. On October 19 the Board met in executive session and, on motion of the Comptroller, voted, eleven in the affirmative, to increase the appropriation to the Municipal Court in the sum of $149,890 by restoring the salaries received on July 1, 1937. The next day, October 20, the Deputy and Acting Comptroller moved that the tentative budget as adopted on October 6, 1937, which has since been considered in executivesession by the members of the Board of Estimate and Apportionment, be amended and that resolution was adopted by a vote of ten to six. If this resolution of October 20 wasoriginally presented at the meeting of October 20, it failed of passage, for section 226-a, Greater New York Charter (Laws of 1901, ch. 466), as amended by Local Law No. 11 for the year 1933, was then in effect, and provided: "No resolution or amendment of any resolution shall be passed at the same meeting at which it isoriginally presented unless twelve votes shall be cast for its adoption." It was adopted by a majority vote, but failed to obtain the twelve votes required for the adoption of a resolution originally presented. The form of the resolution and the minutes of the meeting of October 20 show that the subject of this resolution had been presented, considered and approved at previous meetings. When the Deputy and Acting Comptroller introduced the resolution of October 20 he stated, "I move that the amendments made in the tentative budget as approved at theexecutive sessions, be hereby approved." The minutes record the following proceedings: "Mayor: The Deputy Comptroller moves thatall amendments approved by the Committee of the Whole, and submitted to the Board of Estimate and Apportionment be approveden bloc by one vote. Is a separate vote requested by any member? Pres. Lyons: That means all the changes. Mayor: All enbloc and one vote. Act. Pres. Halleran: The complete budget. Mayor: All the amendments that you made in committee. Call *Page 89 the roll." The use of the words "Committee of the Whole" and "committee" was an unintentional error for the "Board in Executive Session." The fact that the presentation, consideration and approval of the amendments made in the tentative budget had originally occurred at an executive session of the board does not affect the validity of the resolution of October 20. Section 226-c of the Greater New York Charter, as amended by Local Law No. 11 of the year 1933, provides that "the board shall meet in executive session and consider such budget." At the meetings prior to October 20 the amendments had been originally presented. The purpose of the requirement of twelve votes in favor of a resolution passed at the same meeting at which it is originally presented is to prevent hasty action and to provide for adequate consideration. The amendments effected by the resolution of October 20 having been presented and considered at previous meetings, the object of section 226-a has been accomplished. Neither does the fact that the evidence fails to demonstrate that the action of the Board in executive session was reflected in the rigid form of language containing the precise word "resolution" or "be it resolved" constitute a violation of that part of section 226-a which provides: "Except as otherwise specifically provided, every act of the board of estimate and apportionment shall be by resolution." There is substantial compliance with the statute when a motion is made and carried and entered upon the minutes.
The conclusion follows that the budget adopted prior to December 25, 1937, is valid as the budget for the year 1938.
A point raised by appellants in their brief is, we think, not properly presented by this record. They argue that, assuming that salaries were lawfully fixed in the budget of October, 1937, they were validly reduced on January 3, 1938, under section 68 of the new charter, and that under this section the Board of Estimate, even after the adoption of a budget, possesses the power to *Page 90 reduce salaries paid from the city treasury. This is the language of section 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." Assuming such a power to exist, and on this record we express no opinion at present, the resolution adopted by the Board of Estimate on January 3, 1938, was not adopted in pursuance of section 68 of the new charter. The language of this resolution demonstrates that, instead of exercising any such power as may be conferred by that section, the Board attempted, pursuant to section 226 of the Greater New York Charter and section 952 of the New York City Charter (effective January 1, 1938), to adopt, as the proposed budget for 1938, the tentative budget as adopted October 6, 1937. We think, therefore, that the effect of section 68 of the new charter is not before us.
The order should be affirmed, without costs.