
    In the Matter of the Application of J. Harry Tiernan, Petitioner, for an Order against Fiorello H. LaGuardia, Joseph D. McGoldrick, Newbold Morris, Stanley Isaacs, Raymond V. Ingersoll, John A. Lyons, George U. Harvey and Joseph A. Palma, Constituting the Board of Estimate of the City of New York, Respondents.
    
    Supreme Court, Special Term, New York County,
    June 4, 1938.
    
      
      J. Harry Tiernan, Jr., for the petitioner.
    
      William C. Chanter, Corporation Counsel [Robert H. Schaffer of counsel], for the respondents.
    
      
      Affd., 255. App. Div, 754.
    
   Frankenthaler, J.

The appointment of petitioner was authorized by section 162 of the County Law. The board of estimate and apportionment is, therefore, obliged to fix his salary. (Laws of 1909, chap. 513; N. Y. City Charter, § 67.) The fact that the appointment was not made until after the departmental estimate for 1938 had been submitted distinguishes this case from Matter of Flaherty v. Craig (226 N. Y. 76). The county clerk had the right to make appointments after the submission of his estimate. The motion to compel respondents to fix petitioner’s salary at such amount as they may deem proper is granted. (See People ex rel. Cropsey v. Hylan, 199 App. Div., 218; affd., 232 N. Y. 601.) Settle order.  