
    In the Matter of Stanley Carter et al., Respondents, v. Board of Supervisors of the County of Nassau, Appellant.
    Argued October 29, 1969;
    decided December 3, 1969.
    
      
      Morris H. Schneider, County Attorney (L. Charles Leonard and A. Thomas Levin of counsel), for appellant.
    I. A proceeding pursuant to CPLR article 78 does not lie to compel a legislative act. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Davidson v. Common Council of City of White Plains, 40 Misc 2d 1053; Matter of Stich v. Wagner, 36 Misc 2d 51, 18 A D 2d 454, 14 N Y 2d 530.) II. Ordinance No. 118/1962 cited by petitioners is not applicable herein. (Matter of Weber v. Lang, 13 A D 2d 345, 11 N Y 2d 997.) III. Assuming arguendo that Ordinance No. 118/1962 should be applied here, the Board of Supervisors was correct in choosing step 2 of grade 15 for petitioners-respondents.
    
      James R. Moffatt for respondent.
    I. A proceeding under CPLR article 78 lies to compel a fiscal body to adjust the respondents ’ salary in accordance with statute. (People v. Koch, 250 App. Div. 623; People v. Stephens, 71 N. Y. 527; Matter of Petterson v. Daystrom Corp., 17 N Y 2d 32; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677; People v. Ryan, 274 N. Y. 149; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Leichter v. Barrett, 208 Misc. 577; Matter of Stich v. Wagner, 36 Misc 2d 51, 18 A D 2d 454, 14 N Y 2d 530.) II. Ordinance No. 118/1962 cited by the petitions is clearly applicable. (People v. Friedman, 302 N. Y. 75; Matter of Colonial Liq. Distrs. v. O’Connell, 295 N. Y. 129; Moritz v. United Brethrens Church on Staten Is., 269 N. Y. 125; People v. Kupprat, 6 N Y 2d 88; Snider v. Snider, 160 N. Y. 151; Caponigri v. Altieri, 165 N. Y. 255.) III. The Board of Supervisors was not correct in choosing step 2 of grade 15 for respondents as urged by appellant.
   Burke, J.

Respondent-appellant, the Board of Supervisors of the County of Nassau (“Board”), appeals from an order of the Appellate Division, Second Department, which reversed a judgment of the Supreme Court, Nassau County, denying petitioners-respondents’ (“petitioners”) application for a judgment pursuant to CPLR article 78 requiring the board to reclassify them from salary grade 15, step 2, to grade 15, step 3 or step 4. The Appellate Division fixed the salaries at grade 15, step 4, in the amount of $7,833.

Petitioners are uniformed court officers of the District Court and Family Court in Nassau County, who, along with the County Court of Nassau County officers, at December 31, 1966, were classified at grade 14, step 2, and received an annual salary of $6,548. By county ordinance (No. 1/1967), the County Court officers were elevated to grade 15, step 2, as o.f January 1, 1967, at an annual salary of $7,147. Petitioners applied to the board for “reclassification.” Apparently viewing the result as a legislative oversight, the board undertook to eliminate the resulting salary deviations. Amending its prior ordinance (No. 77/1967), the board fixed petitioners’ salary at grade 15, step 2, with the salary increase retroactive to January 1, 1967, thus achieving a parity with the County Court officers. Petitioners claim that at the time of reclassification they were in grade 14, step 3, because the raise to $7,100 was automatic on January 1, 1967.

Subsequently, petitioners served a demand on the board to reclassify them at grade 15, step 3 or step 4. Upon the board’s refusal this proceeding was commenced. Basically, petitioners contend that their salaries had vested at grade 14, step 3, and that any subsequent regrading must accord with the provisions of Ordinance No. 118 of 1962, which provides in pertinent part as follows (§ 1): “When an employee is promoted to a position in a higher salary grade, the minimum salary of which is lower than the salary then being received by snch employee, he shall upon snch promotion be paid the salary of the salary step in the new grade next higher in amount than the salary he had been paid before promotion; provided, however, that if the difference between such person’s salary before promotion and such person’s salary after promotion is less in amount than the amount of the next increment, such person would have received in his former grade, then, he shall receive the salary of the salary step in his new grade immediately higher than herein provided. Such person shall thereafter receive the annual increments of his higher grade position until he reaches the maximum of his grade position.”

The issue thus presented is whether Ordinance No. 77 of 1967, by its retroactive effective date, effectuates the legislative intendment to create parity among the several court officers with similar duties and service in Nassau County through salary reallocation and not through promotion. We hold that it does.

Petitioners’ argument that Ordinance No. 118 of 1962 requires a contrary result fails simply because that ordinance deals with promotions. Their salaries were increased through reallocation by county legislative action to re-establish equality with the County Court officers. Consequently, they were not promoted, and Ordinance No. 118 is inapplicable.

Moreover, even if the provisions of that ordinance apparently inconsistent with those of Ordinance No. 77 of 1967 were relevant, we would be constrained to find the earlier ordinance superseded insofar as it was irreconcilable with the later one. Ordinance No. 77 was specifically enacted to achieve salary equalization. To reach that result, an amendment was enacted to the initial salary reallocation (Ordinance No. 1/1967) and made retroactive to January 1, 1967. Its provisions are intended to correct oversights in the original salary legislation and are consistent with that result. The body of the legislation reads in part “ Change and Correct ”. The intent to create a parity among court officers in the County, District and Family Courts clearly appears in Ordinance No. 77 of 1967. Any holding contrary to that expressed intent would create an undesired and undesirable disparity in salaries of court officers performing similar duties.

The judgment of the Supreme Court, Nassau County, should be reinstated.

Breitel, J. (dissenting in part).

As desirable as it might seem to effectuate the purposes of the Board of Supervisors, if that purpose has not been sufficiently implemented and the applicable ordinances do not permit, the law as it is found must be applied. So the Appellate Division concluded, and so this court should conclude.

The controlling ordinance on which petitioners rely is that designated No. 118 of 1962 (118/62). This ordinance follows a common practice on promotion, reclassification and reallocation (see, e.g., Civil Service Law, §§ 121, 132; cf. § 131, subd. 2). It protects existing salary levels and anticipated annual increments for persons whose salaries are being changed as a result of elevation in position or salary. The problem does not occur too often in promotion where the new salary scale is usually so in advance of the old that there is much less of a problem of the incumbent being "promoted ’ ’ into a less advantageous position. There is, on the contrary, a real risk of disadvantageous elevation for those whose positions have been reclassified or reallocated. Most important, provision is always made for this real risk of economic disadvantage in reallocations or reclassifications, and yet the only ordinance offered to cover the risk with respect to reallocations is 118/62. In short, if this particular ordinance did not apply, one could be certain that appellant would have hastened to cite to a provision governing reallocations.

Hence, the fact that 118/62 refers to “ promotions ” rather than reallocations or reclassifications is not determinative. It is an obvious misnomer, the term ‘ ‘ promotion ’ ’ having been indiscriminately used to cover any increase in salary scales or even steps in a scale, whether in true promotion, reclassification, or reallocation. Although this, of course, does not conform to the correct usage of technicians in the field, it reflects a less sophisticated but very common understanding. The record as made by the parties, as well as the opinions written at Special Term and in the Appellate Division, treated the ordinance as applicable to the reallocations in this proceeding. And this was as it should be. Indeed, petitioners state in their brief to this court that appellant conceded below that ordinance 118/62 was applicable to the facts in this case.

All but conclusive evidence that 118/62, or something exactly like it, applies to the instant reallocations is the pattern of reallocations for District Court and Family Court officers in ordinances 1, 2, and 77, all of 1967. In each, different groups of officers in the same title are slotted into different steps of the scales but not at parallel steps as would have been the case if 118/62 were not being applied. Instead, depending upon the amounts of the incremental gaps the officers are moved ahead of the parallel steps for the same years of service, in the scales from which they are being reallocated.

Another significant characteristic of ordinance 118/62 is that it looks to the actual salaries'“ then being received ” by the civil service employee at the time of the ‘ ‘ promotion ’ * or reallocation. Both the successive reallocations under ordinances 1/67 and 77/67 were made retroactive to January 1, 1967. Although in law the one was substituted for the other, that is, the one legally ‘ ‘ cancelled ” or “ repealed" the other, as is often the ease with reallocations, nevertheless, the second reallocation did not undo the fact that petitioners were entitled to ordinance 1/67 salaries as of January 1, 1967. Hence, benefits provided by ordinance 118/62 must be measured from the salary scales to which petitioners were entitled as of January 1, 1967, prior to the adoption of 77/67. To repeat, this is because 118/62 is designed to pick up discrepancies resulting from reallocations (and also promotions and reclassifications) and, therefore, looks to the actual salary levels then in effect upon which the reallocation works a change, whether the reallocation is based on a new ordinance, a repealer, or whatever.

On this view, the Appellate Division was correct in its analysis and petitioners were entitled to be advanced one step or increment by reason of ordinance 118/62, but not the two steps as directed by that court. The ordinance refers only to an advance of one step because of an insufficient first annual increment on a reallocation (or “promotion”), and not to two, even if it would, arguably, take more than one increment to accomplish what can be gleaned as the purpose of the ordinance. For petitioners as well as respondents the rule should be that the leeway for interpreting statutes under the rubric of purpose is present but is distinctly limited by language so clear as not to allow any escape.

Accordingly, I dissent in part and vote that the order of the Appellate Division be modified to declare petitioners to be entitled to salary grade 15, step 3, and that the order be otherwise affirmed.

Chief Judge Fuld and Judges Scileppi, Bbegan and Gibson concur with Judge Burke ; Judge Breitel dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Order reversed, without costs, and the judgment of Supreme Court, Nassau County, reinstated. 
      
      . Technically, petitioners’ prayer to the Board of Supervisors was for a reallocation of their salary grade. Since September 1, 1962, classification or reclassification of court employees in their proper titles has been a function of the Administrative Board of the Judicial Conference (Judiciary Law, § 212, subd. 1). Allocation or reallocation of salary grades is a fiscal function and remains the responsibility of the fiscal authority, in this case Nassau County.
     
      
      . In fact, Ordinance No. 1 of 1967, enacted on January 5, 1967, is also retroactive to January 1,1967.
     