
    Alfred Driesbach et al., Respondents, v. City of New York, Appellant.
    Argued March 14, 1956;
    decided May 24, 1956.
    
      Peter Campbell Brown, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for appellant.
    The determination runs counter to the express wording of section 220 of the Labor Law, the express action and intent of the board of estimate, and the provisions of section 67 of the New York City Charter. (Matter of Carroll v. Grumet, 281 App. Div. 35, 305 N. Y. 692; Sawyer v. Church, 199 Misc. 1002; Matter of Modern Ind. Bank v. Kennedy, 179 Misc. 646; National Labor Relations Bd. v. Bemis Bros. Bag Co., 206 F. 2d 33; Cross & Co. v. National Labor Relations Bd., 174 F. 2d 875; Glandzis v. Callinicos, 140 F. 2d 111; Pacific Amer. Fisheries v. United States, 138 F. 2d 464; Alabama Power Co. v. Federal Power Comm., 134 F. 2d 602; Williams v. Jacksonville Term. Co., 118 F. 2d 324; State ex rel. King v. Abbott, 4 Terry [Del.] 472.)
    
      David A. Savage and Donald A. Savage for respondents.
    I. The basic salary for plaintiffs is ‘ ‘ not less than the prevailing rate of wage.” The cost-of-living bonus granted to plaintiffs was a voluntary payment of compensation in addition to their basic salary. The bonus never became a part of basic salary. (Ryan v. City of New York, 177 N. Y. 271; Matter of Gaston v. Taylor, 274 N. Y. 359; McCann v. City of New York, 52 App. Div. 358, 166 N. Y. 587; McMahon v. Mayor, 22 App. Div. 113; Evadan Realty Corp. v. Patterson, 192 Misc. 850, 276 App. Div. 751, 300 N. Y. 760; Rasmussen v. City of New York, 301 N. Y. 532; McGarey v. State of New York, 276 App. Div. 793.) II. Defendant, nunc pro tunc, is trying to change the character, purpose and meaning of the cost-of-living bonns by making it a part of basic salary. (Greene v. Board of Higher Educ. of City of N. Y., 278 App. Div. 753, 303 N. Y. 1013; Kramer v. Board of Educ. of City of N. Y., 275 App. Div. 915; Wakefield v. Board of Educ. of City of N. Y., 192 Misc. 639, 274 App. Div. 884, 299 N. Y. 664; Abramson v. City of New York, 278 App. Div. 382; Zuckerbrod v. Board of Higher Educ. of City of N. Y., 276 App. Div. 752, 300 N. Y. 765; Matter of Carroll v. Grumet, 281 App. Div. 35, 305 N. Y. 692; Rosen v. New York City Teachers' Retirement Bd., 282 App. Div. 216, 306 N. Y. 625.) III. The maintenance supplied plaintiffs for which defendant had evaluated a charge in the budget for the years involved herein could not be unilaterally increased and made retroactive. (Matter of Giannettino v. McGoldrick, 295 N. Y. 208; Matter of Henderson v. La Guardia, 182 Misc. 1071, 268 App. Div. 892, 294 N. Y. 728; Rasmussen v. City of New York, 301 N. Y. 532; Walters v. City of New York, 190 N. Y. 375; People ex rel. Stokes v. Tully, 108 App. Div. 345.)
   Per Curiam.

Plaintiffs are employees of the City of New York in its department of hospitals. In this action they are suing under section 220 of the Labor Law to recover a differential between the basic salary and maintenance paid to them from 1942 to February, 1948, and the prevailing rate of wage. They were employed under the civil service title of “ maintenance man ”. During part of this interval of time; in addition to their basic pay, they received so-called ‘ ‘ cost of living ’ ’ bonuses from the city. These bonuses were paid under a plan designed to foster continuance of city employees in the public service during the period of emergency following the commencement of World War II, by increasing their take-home pay, without affecting their pension rights (Matter of Carroll v. Grumet, 281 App. Div. 35). The substance of the contention of these municipal employees is that inasmuch as cost-of-living bonuses formed no part of the basis on which their retirement allowances are computed, they should not be regarded as wages at all in determining what balances may still be due to them to compensate them at the prevailing rate. They seek to recover additional money to compensate them at the prevailing rate without deduction for this part of the remuneration which they have received. This contention cannot be sustained. These cost-of-living bonuses were paid to apply on the work for which these employees are now claiming that they were underpaid. They should be included as part of the remuneration actually received for performing the work which they were employed to do, and offset against whatever larger amounts may be represented by the prevailing wage rates (Zuckerbrod v. Board of Higher Educ., 278 App. Div. 822, appeal dismissed 302 N. Y. 942).

The judgment appealed from should be modified, without costs, by deducting from "the amounts awarded to plaintiffs whatever cost-of-living bonuses they received during the years in question, and, as so modified, affirmed.

Conway, Ch. J., Desmond, Dye, Fxjld, Froessel . and Van Voorhis, JJ., concur; Burke, J., taking no part. , .

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, without costs. ' ■ ' •  