
    Dolan v. City of Brooklyn.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Municipal Corporations—Fire Department—Compensation.
    Under Laws N. Y. 1887, e. 582, providing that the Brooklyn city board of estimate-shall fix the salaries of engineers in the fire department at certain specified sums, where the salary of an engineer is fixed at less than the specified sum his remedy is by mandamus, and he cannot sue the city for the difference.
    Appeal from special term, Kings county.
    Action by Timothy Dolan against the city of Brooklyn. The complaint was dismissed, and plaintiff appeals.
    Argued.before Barnard, P. J., and Pratt, J.
    
      F. A. McCloskey, for appellant. Almet F. Jenks, Corp. Counsel, for respondent.
   Pratt, J.

Plaintiff sued the city of Brooklyn to recover the difference between the salary he and his assignors should have received and that which they did recover as engineers in the uniformed fire force of the.city of Brooklyn. The claims are founded on chapter 582, Laws 1887, which provides that the pay of uniformed members of the department shall be fixed by a majority of all the members of the board of estimate of the city of Brooklyn. The act gives the board of estimate discretion in fixing the amount of the pay of certain of the members, but gives the board no discretion in fixing the amount of the pay of engineers. Their pay is to be fixed at certain specified sums, which vary with the length of service of the individual. The board of estimate fixed the salary of plaintiff and his assignors, all of whom were engineers, at less sums than as directed by the act. The question to be determined! is whether the city of Brooklyn can be sued for the difference in salary, before the board of estimate has fixed the salary at the sum provided by the act of 1887. It seems to us that such an action will not lie. The act directs the board to fix the salary of an engineer at a specified sum. If the board neglects to fix it at all, or fixes it at a sum other than as directed, the person grieved has his remedy by mandamus. There can be no default on the part of the city, and consequently no right of action against it, until the persons designated by the act have fixed the amount of plaintiff’s salary, and the city has failed to pay the salary so fixed. The judgment appealed from should be-affirmed, with costs. All concur.  