
    The People of the State of New York ex rel. Ellen D. Kelly and Others, Respondents, v. Edward J. Dooley, as Acting Chief City Magistrate of the Board of City Magistrates, Second Division, City of New York, and John Purroy Mitchel, Mayor of the City of New York, and Others, Constituting the Board of Estimate and Apportionment of the City of New York, Appellants.
    Second Department,
    October 26, 1915.
    Municipal corporations — probation officers, city of New York—mandamus—when writ does not lie to compel acting chief city magistrate to prepare payroll — failure of board of estimate and apportionment to make appropriation for probation officers.
    The Special Term has no authority to compel, by mandamus, the acting chief city magistrate of the board of magistrates, city of New York, to prepare, certify and forward to the civil service commissioners a payroll allotting salaries to certain probation officers, or to compel the board of estimate and apportionment to readjust its budget so as to provide salaries for said officers.
    Mandamus will not lie to compel a public officer to perform a duty not imposed upon him by law and said acting chief city magistrate is not required, either by statute, or by the action of the board of city magistrates, to prepare and certify the payroll aforesaid.
    Moreover, the creation of the budget by the board of estimate and apportionment, together with the matters therein contained and their readjustment, is exclusively within the. jurisdiction of the administrative officers of the city government and the court has no-powér to interfere with or supervise then action by a writ of mandamus.. •
    Action by the board of estimate and apportionment under section 287 of the charter of the city of New York, being discretionary, cannot be compelled by mandamus.
    When the board of estimate and apportionment, in making up the budget, did not include salaries for the full number of probation officers appointed, it is a determination that some of them shall not receive a salary, and it is then for the board of city magistrates to determine which of the officers shall receive the salaries appropriated.
    Appeal by Edward J. Dooley, as acting chief city magistrate, and others from an order of the Supreme Court, made at the Kings County Special .Term and entered in the office of the clerk of the county of Kings on the 23d day of February, 1915, granting relators’ motion for a peremptory writ of mandamus herein.
    
      Terence Farley [Arthur Sweeny and Frank L. Polk with him on the brief], for the appellants.
    
      Frederick C. Gladden, for the respondents.
   Rich, J.:

This is an appeal from an order of the Special Term, granting the motion of female probation officers of the board of city magistrates of the second division, city of New York, for a peremptory writ of mandamus directing the appellant Edward J. Dooley, asacting chief city magistrate, to certify to the municipal civil service commission of the city of New York a payroll containing their names, together with the amount of salary due to each from January 1 to January 15, 1915, with a statement that they have performed their duties as such officers and are entitled to their several salaries, and directing the other appellants, who compose the board of estimate and apportionment, to readjust their appropriation for probation officers as appearing in the-budget of 1915, in such manner as to provide. for:payment of salaries of $1,500 per annum to each of three male probation officers; $1,200 to each of seven male probation officers; $1,200 to each of three female probation officers, and $900 to each of eleven female probation officers, which readjustment would provide for and permit payment of such sala.-ríes to the relators and other: appointed female probation officers.

There -was no. authority prior to the year 1904 for the payment of any probation officers, male or female. Although the appointment of such officers had been generally authorized by the provisions of section 11a of the Code of Criminal Procedure, the section contained a clause providing: “No probation officer appointed under the provisions of this section shall receive compensation for his services as such probation officer.” In 1904 the section was amended (Chap. 508) by inserting therein the following: “The board of estimate and apportionment in the city of New York, may, in their discretion determine whether women appointed to act as probation officers, not detailed from other branches of the public service, shall receive a salary, and if they shall so determine, they may fix the amount thereof and provide for its payment. ”

The relator Hatfield was appointed in February, 1904, and the relator Peacock in May, 1906. In June, 1910, a law was enacted known as the Inferior Criminal Courts Act of the City of New York (Laws of 1910, chap. 659), which provided (§ 96): “The female probation officers and civilian male probation officers of the board of city magistrates of the second division shall continue in office, unless and until removed as provided by this act.” The board of city magistrates of the second division was directed to appoint five civilian male probation officers in addition to those continued, and power was given the majority of the justices composing such board tó appoint, from time to time, such additional probation officers as the board of aldermen, upon the recommendation of the board’ of estimate and apportionment, might authorize, and to remove such officers at pleasure. In the same year, by an act taking effect September first (Chap. 610), section 11a of the Code of Criminal Procedure was amended so as to read in part as follows: “No probation officer appointed under the provisions of this section shall receive compensation for his services as such probation officer until allowed by proper ordinance or resolution,, as-hereinafter prescribed, * • " *;•- •*". ,The:. board; of estimate and' apportionment in the' city of New York * * * may in their discretion determine whether probation officers, not detailed from other branches of the public service, shall- receive a salary, and if they shall so determine, they may fix the amount thereof and provide for its payment, and they may also provide for the necessary expenses of probation officers.” The relator Hatfield ceased to be a probation officer prior to September 1, 1910, but was reappointed March 1, 1911. The relator Kelly was appointed March 30, 1912; the relator Virden September 21, 1912; the relator Holden October 31, 1912, and the relator Coyle January 16, 1913. They received in 1914 a salary of $900 each, with the exception of Miss Kelly, whose salary was fixed- at $1,200. It is alleged in the petition that the departmental estimate required by section 226 of the charter of said city (Laws of 1901, chap. 466) was sent to the board of estimate and apportionment by the acting chief city magistrate of the second division prior to September 10, .1914, and provided, so far as probation officers were concerned, for ten male, and fourteen female probation officers, .with salaries amounting in all to $26,400. The comptroller of the city denies this allegation (as to the gross amount of the salaries asked for), and says that the amount asked was $33,300, and his affidavit seems to be sustained by the departmental estimate itself, which shows, among other things, the amount of money requested by each department for the compensation of its officers. The board of estimate and apportionment allowed and appropriated $26,400 for the payment of fourteen male and seven female probation officers, which was an increase over the number of male officers requested of four, and a decrease in female officers requested of seven. The board of aldermen adopted the budget on November 30, 1914, and on the eleventh day of December following the board of city magistrates adopted the following resolution: “That this Board request the Board of Estimate and Apportionment to readjust the Budget for 1915 in accordance with the provisions of Sec. 231 of the Charter to conform to a proposed schedule as follows: 3 male probation officers at $1500 per annum, $4500; 1 male probation-officers at $1200 per annum, $8400; 3 female probation officers at $1200 per annum, $3600; 11 female probation officers at $900 per annum, $9900; total, $26,400, so that the item of $26,400 may be used for the salaries of the probation officers now in office.” The number of both male and female officers stated in this resolution is identical with the number stated in their departmental estimate, and the gross amount of salaries is the same as that allowed by the board of estimate and apportionment, and included in the budget. This resolution was received by the board of estimate and apportionment, and referred to its committee on tax budget for consideration and report, who later-reported:

“ (1) That the Board should make no change in the Budget for the Magistrates’ Courts, Second Division, in so far as it relates to the number or salaries of men and women probation officers; that the action taken by the Board should stand.”

The report was adopted, and on February first following the board of city magistrates adopted the following resolutions:

“Resolved, that in accordance with the resolution of the Board of Estimate and Apportionment, we designate the following Female Probation Officers to be retained at a salary of $1200 per annum: Ellen D. Kelly, Elizabeth A. Hardoncourt, Myra P. Hughes, Ellen M. O’Grady, and Marie P. Holden; and Mary E. Hickey and Margaret Coyle at a salary of $900 per annum.”
“Resolved, that the head of this Department be instructed to comply with the provisions of Section 1543 of the Charter, with respect to those who are not designated.”

Section 1543 of the charter (Laws of 1901, chap. 466) then provided: “Wherever in any department or institution an office, position or employment is abolished, or made unnecessary through the operation of this act, or in any other manner, or whenever the number of offices, positions or employments of a a certain character is reduced, the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services.”

It appears that the relators Kelly and Coyle were retained at the same salary they received in 1914 — $1,200 and $900 respectively, and the relator. Hólden was retained and her salary advanced, from $900 .to $1,200, and they can have no grievance of interest in the subject-matter. • The remaining relators were by the action of the board of city magistrates automatically suspended without pay by the provisions of section 1543 of the charter, if the action of the board of estimate and apportionment was valid and enforcible. Without considering the first contention of the appellants, which seems to be sound, I think that the order must be reversed upon the ground that the Special Term was without legal authority to compel the acting chief city magistrate to prepare) certify or forward a payroll to the civil service commissioners or to compel the board of estimate and apportionment to readjust its budget.

No duty was imposed upon the acting chief city magistrate, either by statute or by the action of the board of city magistrates, to prepare, certify or forward a payroll to the municipal civil service commission. Section 53 of chapter 659 of the Laws of 1910, to which our attention is directed by counsel for the respondents and upon which he seems to rely, does not create or charge the magistrate with the performance of this duty, and mandamus will not he to compel a public officer to perform a duty not imposed upon him by law. (People ex rel. Jones v. Thompson, 147 App. Div. 150.) In addition to this the evidence satisfactorily establishes that three of the relators whom the writ commands the acting chief city magistrate to certify are duly qualified and acting officers and entitled to their several salaries,” were not deprived of .any right to salaries for services rendered during that year, so that the acting chief magistrate is improperly required by the writ to certify to conditions that do not exist.

The creation of the budget, the matters therein contained, and their readjustment, are exclusively within the jurisdiction of the administrative officers of the city government, and the courts have no power in proceedings of this character' to interfere with or to supervise their action. . (People. ex rel. Schwab v. Grant, 126 N. Y. 473, 482; People ex rel. Clapp v. Listman, 40 Misc. Rep. 372; affd: on opinion, below, 84 App. Div. 633; 26 Cyc. 279.) The respondents'contend that under the provisions of section 237 of the charter (as amd. by Laws of 1913, chap. 36) -the court has -the power to compel the board, of estimate and. apportionment to' so readjust its budget as that it will comply with the departmental estimate. The con-' tention is without merit. (Bird v. Mayor, etc., of New York, 33 Hun, 396; People ex rel. Daly v. York, 66 App. Div. 453; affd., without opinion; 171 N.Y. 627; People ex rel. Trustees v. Town Auditors, 126 id. 528.) Besides, the. exercise of the power conferred by the section is discretionary and cannot be compelled by .mandamus. • (See People ex rel. O’Loughlin v. Board of Estimate, 87 Misc. Rep. 601.) The order should also be reversed upon the merits. The board of estimate and apportionment is vested with the sole power of determining whether probation officers, male or female, not detailed from other branches of the public service, shall' receive a salary, and directs that if they so determine they shall fix the amount thereof and provide for payment. This power they may exercise each year when they make up their budget, and the omission to include salaries therein necessarily establishes that for such year their determination is that probation officers who are omitted shall not receive a salary. "When they determine, as in the case at bar, that a stated number of the probation officers in a division are to be paid a certain salary, and the number of such officers then employed is greater than the number for whom salaries are provided, it is for the board of city magistrates to determine which of the officers shall receive such salaries. That is all the board of estimate and apportionment did in the budget of 1915. They did not create any new offices or abolish any existing ones. This they could not do. It was for the board of city magistrates to determine which of the female officers should receive the salaries, and they made their selection. -Those who were not selected remain probation officers, they possess the powers of probation officers,, but receive no compensation for then.' services. If the board of city magistrates did not care to appoint the four additional- male probation officers for. whom salaries had been provided, such salaries remained in the treasury unexpended, but there is no power in the court to compel the -board of estimate and apportionment, under the guise of a readjustment of- their-'budget,' to provide a salary for the-additional female probation-officers whom they had determined should not, for that year at least, receive salaries. The distinguishing fact that the sole power to determine whether probation officers should receive a salary is vested in the board of estimate and apportionment, present in the case under consideration and absent in the cases to which our attention is directed by the learned counsel for the respondents in his discussion upon this branch of the case, removes it from the operation of the rule he seeks to invoke.

The order must be reversed, with ten dollars costs and disbursements, and the proceeding dismissed.

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

The parties hereto having stipulated in open court that a justice may be substituted in place of Burr, J., deceased, Mr. Justice Putnam was so substituted. Order reversed, with ten dollars costs and disbursements, and proceeding dismissed. 
      
      The provisions of the Inferior Criminal Courts Act were materially altered by chapter 531 of the Laws of 1915.— [Rep.
     