
    George C. Andrews, Respondent, v. Frank R. Pierson, as President of the Village of Tarrytown, and Others, Appellants.
    Second Department,
    July 28, 1916.
    Villages—salary of police justice — increase of salary during term of office — Village Law, section 184, construed—taxpayer’s action to prevent waste.
    As the Village Law, section 184, while empowering the trustees of a village to provide a salary for the police justice instead of fees, also states that “ such salary shall not be increased or diminished during his term of office,” the trustees of the village are without power to increase the salary of a police justice who has been re-elected, from $50 a month to $1,000 a year by a resolution passed four days after his new term of office began. This is true although the justice had as yet received no salary for his new term of office, as his right thereto accrued when the term of office began.
    Such illegal increase of the judicial salary is a waste and injury to the funds and property of the village which may be redressed by a taxpayer’s suit under section 1925 of the Code of Civil Procedure.
    
      Appeal "by the defendant, Frank E. Pierson, as president, and others, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the 30th day of March, 1916, upon the decision of the court after a trial at the Westchester Special Term.
    The judgment enjoined the defendants, the president and town trustees of the village of Tarrytown from paying to the defendant William B. Moorhouse, police justice, any salary in excess of $660 per annum, and it further restrained said police justice from collecting any greater sum during his present term of office.
    
      Clarence 8. Davison and Hugh A. Thornton, for the appellants.
    
      George C. Andrews, respondent, in person.
   Putnam, J.:

This is a taxpayer’s action under Code of Civil Procedure, section 1925, to test the legality of the resolution of the trustees of the village of Tarrytown on January 4, 1916, by which they voted to increase the salary of defendant William B. Moor-house, as village police justice. Mr. Moorhouse had been elected on March 16, 1915, to take office on January first following, for a term of four years. His official oath was filed on March 22, and on December 21,1915,. he filed the required bond. Under a resolution of the village trustees which bad been passed December 12, 1911, the salary of the police justice had been fixed at fifty-five dollars a month to begin January 1, 1912, which had been thereafter paid to the incumbent of the office of police justice.

On January 1, 1916, Justice Moorhouse entered on his new official Term. On Janury 4, 1916, the village board of trustees voted:

Resolved, That the salary of the Police Justice for the term beginning Jan. 1st, 1916, be and the same is hereby fixed at one thousand dollars a year, to be paid in the same manner as other salaries are paid.”

The Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64) provides:

§ 184. Compensation of village police justice. If the police justice of a village shall not be paid a salary, he shall be entitled to receive for his services the same fees as a justice of the peace for like services, to be paid in like manner, except that his fees in proceedings on account of violations of the village ordinances shall be paid by the village.
“The board of trustees may determine that the police justice shall be paid a salary instead of fees, and may fix the amount thereof, and such salary shall not be increased or diminished during his term of office. ”

Counsel point out that this limit on the power of the village does not designate the time when the salary is to be fixed, or even prescribe that this shall be done before the beginning of the official term, as is often inserted in such enactments (See Laws of 1881, chap. 557); likewise are cited statutes defining the minimum period before beginning of the term, when the salary shall be fixed (Laws of 1875, chap. 461; Laws of 1877, chap. 436, § 5); from which it is suggested that the village might fix this salary after the term began, if such increase was passed before any salary payments for that term had been actually made. Acts changing official compensation from fee system to a fixed salary are also referred to, where the Legislature leaves to the town board, or to the board of supervisors, to vote such change during the incumbent’s official term. (County Law [Consol. Laws, chap. 11; Laws of 1909, chap. 16], § 12, subd. 5, as amd. by Laws of 1911, chap. 359; Laws of 1913, chap. 742, and Laws of 1914, chap. 358; Town Law [Consol. Laws, chap. 62; Laws of 1909, chap. 63], § 107a, as added by Laws of 1915, chap. 11.) Unless otherwise provided by the Constitution, this is clearly within the power of the Legislature. (1 Dillon Mun. Corp. [5th ed.] § 423. See, also, People ex rel. Luyster v. Cocks, 172 App. Div. 737.)

So long, however, as the vote of December 12,1911, remained in force the office of village police justice had attached to it the monthly salary of fifty-five dollars, which remained the law of that village until repealed or lawfully amended, and warranted the payment of this salary to successive incumbents of the office of police justice. (People ex rel. Woods v. Crissey, 91 N. Y. 616.) Hence on the first of January, and during the four days before this meeting, Justice Moorhouse’s legal salary was at the rate of fifty-five dollars per month, even if not payable until the end of January.

Therefore, this attempted raise to $1,000 a year, voted on January fourth, was an increase during the term of office, contrary to the prohibition of the Village Law, section 184. (Ries v. West New York, 79 N. J. L. 164; Lowry v. City of Lexington, 113 Ky. 763; Devers v. York City, 150 Penn. St. 208; 1 Dillon Mun. Corp. [5th ed.] § 423n.)

Such increase of judicial salary would be a waste and injury to the funds and property of the village of Tarrytown, which may be redressed by taxpayer’s suit under Code of Civil Procedure, section 1925.

I advise, therefore, to affirm the judgment, with costs.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Judgment affirmed, with costs.  