
    Arthur B. J. Sauerbrunn, Appellant, Respondent, v. The Board of Education of the City of New York, Respondent, Appellant.
    First Department,
    May 3, 1912.
    Municipal corporations — New York city — action by architectural draughtsman to recover salary — interest — authority of board of aldermen to reduce salary.
    Where a party who has occupied the position of architectural draughtsman in the bureau of buildings in the board of education of the city of New York, brings an action to recover the difference between the amount of salary paid him prior to the commencement of the action and the amount fixed by resolution of the board of aldermen, he is entitled to interest on such difference from the time the salary became due, and not merely from the date of the filing of notice with the comptroller.
    Section 56 of the Greater New York charter, conferring upon the board of. aldermen the power to fix salaries, authorizes them to reduce the salary of an architectural draughtsman in the bureau of buildings, such position not being within one of the grades established by the civil service commission.
    
      Appeal by the plaintiff; Arthur B. J. Sauerbrunn, from a judgment of the Supreme Court in favor Of the defendant, entered in the office of the clerk of the county of New York on the 19th day of March, 1912, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of March, 1912, denying the plaintiff’s motion for a new trial; and an appeal by the defendant,' The Board of Education of the City of New York, from so much of said judgment as allows the plaintiff interest. ■ • :
    
      John E. O’Brien, for the appellant, respondent.
    
      Charles McIntyre, for the respondent, appellant.
   McLaughlin, J.

Since some time prior to the 9th of June, 11903, the plaintiff has occupied the position of architectural draughtsman in the bureau of buildings in the board of education of the city of New York. On that date a resolution of the board of aldermen of the city went into effect fixing the salary for the position of architectural draughtsman * * * at the rate of $45 per week,” but on the thirtieth of the same month another resolution was passed fixing such salary at thirty-five dollars a week. Plaintiff claims that notwithstanding the resolution of June thirtieth he was entitled to receive the amount stated in the resolution of June: ninth — that is, forty-five dollars per week — and here seeks to recover the difference for six years immediately prior to the: commencement of the action between that sum and what he was paid. The action was commenced on April 24,' 1941. Between April 1, 1905, and January 9, 1906, plaintiff received thirty dollars per week and since then thirty-five dollars per week. Defendant admits for a period of six years immediately prior to the commencement of the action a liability for the difference between the amount paid and the amount as fixed in the resolution of June thirtieth — thirty-five dollars per week. The amount of the .unpaid salary admitted by the defendant is one hundred and eighty-five dollars and eighty-three cents. The interest thereon is seventy-two dollars and forty cents, making in all two hundred and fifty-eight dollars and twenty-three cents, and for that sum a verdict in favor of plaintiff was directed.

The plaintiff appeals, claiming he was entitled to receive the difference, together with the interest thereon, between what was paid and forty-five dollars per week. The defendant appeals on the ground that the plaintiff was entitled to interest only from the date of the filing of notice of claim 'with the comptroller.

The question raised by the defendant’s appeal was settled adversely to its contention by a recent decision of this court (Smith v. Board of Education, 150 App. Div. 898).

The principal question presented by the plaintiff’s appeal is whether the board of aldermen had the power to reduce the salary from forty-five dollars to thirty-five dollars per week by the resolution of June 30, 1903. Section 56 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1902, chap. 435) conferred upon the board of aldermen the power to fix salaries. Such power plainly contemplated that the board might fix the salaries either by an increase or decrease. Counsel for plaintiff, however, urges that a reduction of his salary by the resolution of June thirtieth, if such effect be given to it, amounted to a removal from his position by placing him in a lower position than the one theretofore held; that this could not be done, except in violation of section 1101 of the Greater New York charter, which provides for the retention of a position by an employee except under certain conditions, which are not here applicable.

Prior to the passage of either resolution the civil service commission had graded the position of architectural draughtsman according to- annual compensation.” Thirteen grades were made dependent upon the amount of annual compensation received. But the rate of compensation fixed by the resolutions of the board of aldermen did not place the plaintiff in any of the grades which the proof shows the civil service commission established. The thirty-five-dollar-a-week rate would have amounted to eighteen hundred and twenty dollars annually and the forty-five-dollar-a-week rate to twenty-three hundred and forty dollars annually. No such grade or position was shown to have been established, and if so, it would seem to be unavailing to the plaintiff because, in December, 1903, the grades of position of architectural draughtsman were abolished. Once the grades were abolished, even though it be conceded that the plaintiff’s position theretofore came within one of the established grades, and that his salary could not, while such grades existed, be reduced, then the resolution applied. The resolution of June thirtieth unquestionably reduced the plaintiff’s salary from forty-five dollars to thirty-five dollars a week. (People , ex rel. Stokes v. Tully, 108 App. Div. 345.) The board of aldermen had as much power to dimmish salaries as to increase them. (Buckbee v. Board of Education, 115 App. Div. 366; affd., 187 N. Y. 544.) .

Plaintiff’s counsel also urges that the verdict was inadequate in that he was- only permitted to recover for six years immediately prior to the commencement of the action, that is, from April 24, 1905, his claim being that he should have been permitted to recover from April 1, 1905, because the salary for April was not payable until the last of that month. • It was stipulated at the trial that the salaries of the defendant’s employees were “payable on the last day of each month.” Under the stipulation, therefore, the plaintiff should have been permitted to recover for the entire month of April, and if he had the recovery would have been $282.37 instead of $258.23. In the brief presented by defendant’s counsel it is conceded that if the plaintiff is in a position to raise the question the court has the power to increase the judgment to this extent. Plaintiff is in a position to raise the question and the judgment should, therefore, be increased to that extent.

The judgment is modified by increasing the amount of plaintiff’s damage from $258.23 to $282.37, and as thus modified affirmed, without costs to either party.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Judgment modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.  