
    In the Matter of the Application of William T. Rushford and Sixty-Four Others, Respondents, Appellants, and Others, Petitioners, against Fiorello H. LaGuardia, as Mayor of the City of New York, and Others, Appellants, Respondents.
    
    First Department,
    December 23, 1938.
    
      
      Irving H. Saypol of counsel [Leo Kotler with him on the brief; Saypol & Kotler, attorneys], for the respondents, appellants.
    
      William S. Gaud, Jr., of counsel [William C. Chanler, Corporation Counsel, attorney],for the appellants, respondents.
    
      
       Modfg. and affg. 169 Misc. 581.
    
   Per Curiam.

While the Special Term correctly decided the other questions involved, we think that it erred with respect to the ten petitioners appointed after January 1, 1938. The statute under which they were appointed (Greater N. Y. Charter, § 1373, as amd. by Laws of 1937, chap. 716) provided that salaries should be fixed by the board of estimate and apportionment. The 1938 budget required certain conditions to be fulfilled with respect to expenditure of moneys for salaries of new appointees. (See Matter of Daly v. McGoldrick, 255 App. Div. 594, decided herewith.) Among these requirements was the fixation by the budget director of the rate of compensation for those appointed to fill vacancies. Under these circumstances these ten petitioners may not obtain the relief sought with respect to payment of a sum larger than the salaries at which they were appointed.

The order appealed from should be, accordingly, modified in so far as it directs payment to petitioners Joseph Garguilo, George Wilder, Joseph Nudelman, John R. Dalton, Joseph Kotlowitz and Martin H. A. Zinner at a higher rate than $2,000 per annum; and in so far as it directs payment to the petitioners Allen G. Walbaum, Maurice J. McCarthy, Jr., Hamlet Catenaccio and Margaret E. Doyle at a higher rate than $1,200 per annum, and, as so modified, affirmed, without costs.

Present — Martin, P. J., O’Malley, Townley, Dore and Callahan, JJ. ¡

Order unanimously modified in so far as it directs payment to petitioners Joseph Gar güilo, George Wilder, Joseph Nudelman, John R. Dalton, Joseph Kotlowitz and Martin H. A. Zinner at a higher rate than $2,000 per annum; and in so far as it directs payment to the petitioners Allen G. Walbaum, Maurice J. McCarthy, Jr., Hamlet Catenaccio and Margaret E. Doyle at a higher rate than $1,200 per annum, and as so modified affirmed, without costs. Settle order on notice.  