
    The People of the State of New York ex rel. William E. Daly, Appellant, v. Bernard J. York and Others, as Commissioners of Police, Constituting the Board of Police of the Department of Police of the City of New York, Respondents.
    
      Police commissioners of New York — not compelled to pay compensation to a sergeant where no appropriation has been made — remedy against the city.
    
    The police commissioners of the city of New York cannot be compelled by mandamus to pay moneys to a person who claims to be entitled to compensation as a police sergeant under the provisions of section 3 of chapter 569 of the Laws of 1895, where no appropriation has been made for such payment.
    
      Semble, that the claimant’s remedy is by an appropriate action against the city of New York.
    Appeal by the relator, William E. Daly, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1901, as resettled and amended by an order entered in said clerk’s office on the 4th day of June, 1901, nune pro tninc- as of the 10th day of May, 1901, dismissing an alternative writ of mandamus, and also from the judgment entered thereon in said clerk’s office on the 24th day of May, 1901.
    
      Abram I. Elkus, for the appellant.
    
      Theodore Connoly, for the respondents.
   Per Curiam :

The judgment and order appealed from in this proceeding must be affirmed, for the reason that it appears from the record that no appropriation was ever made by the board of estimate and apportionment for the payment of the services of the relator, even if he is entitled to compensation as a police sergeant, and that no provision for such payment was ever made by the police board. But this affirmance is without, prejudice to the right of the- relator to bring an appropriate action upon the claim he asserts against the city. If he is entitled to compensation as a police sergeant, under the provisions of section 3 of chapter 569 of the Laws of 1895 (amending Laws of 1882, chap. 410, § 265), it was the duty of the board of estimate and apportionment to make provision for the payment of his salary. That was a duty required by law. By section 226 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) it is required that in the several boroughs of the city the president thereof and the heads of departments, bureaus, offices, boards and commissions shall send to the board of estimate and apportionment an estimate in writing of the amount of expenditure, specifying in detail the objects thereof, required in their respective departments, bureaus, offices, boards, and commissions, including a statement of each of the salaries of their officers, clerks, employees and subordinates, and upon the budget thus presented the board of estimate and apportionment must make the necessary appropriations.

•If the relator is entitled to the amount he claims from the city, it may be that he is not to be deprived thereof because of even' an honest mistake of the police commissioners respecting the amount of his compensation, or of failure of the proper authorities to make the appropriation — but the police commissioners cannot be compelled by mandamus to pay a sum of money to the relator for which no appropriation has been made.

The judgment and order must be affirmed, without prejudice to the right of the relator to sue.

Present — Patterson, Ingraham, Hatch and Laughlin, JJ.

Judgment and order affirmed, without prejudice to the right of the relator to sue.  