
    In the Matter of the Petition of Charles E. P. Babcock, Appellant, for a Peremptory Writ of Mandamus Directed to Daniel J. Sweeney, as City Clerk, and Others, Respondents.
    Fourth Department,
    October 17, 1906.
    Municipal corporations — salaries in department of public works, city of Buffalo — approval of common council required.
    Under section 273 of the charter of the city of Buffalo, providing that the salaries of employees in the department of public works “shall be fixed by the commissioner of public works with the concurrence of the common council,” the determination of said commissioner to adopt a scale of salaries must be acted upon and concurred in by the common council in order to entitle an employee to be paid at the scale fixed by the commissioner.
    Appeal by the petitioner, Charles E. P. Babcock, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 20th day of July, 1906, denying an application for. a peremptory writ of mandamus directed to the respondents commanding them to execute, deliver and pay to the petitioner warrants on the city treasurer for services rendered by petitioner as an assistant engineer in the bureau of engineering in the city of Buffalo, from A pril 15, 1906, to and including June 30,-1906, at the rate of $2,400 a year.
    
      Charles L. Feldman and Edward L. Jung, for the appellant.
    
      Samuel F. Moran and Louis E. Desbecker, for the respondents.
   Nash, J.:

The right claimed by the petitioner to a salary of $2,400 a year rests upon the determination of the commissioner of public works to fix the annual salaries of assistant engineers at $2,400 after’ twenty years’ service, and the fact that after twenty years’ service the commissioner determined to and did fix the salaries of the petitioner and Buttolph. at $2,400 each for the fiscal year 1905-1906, and placed said sums in the estimates of the bureau of engineering, which estimates were approved by the common council, and that such action of the commissioner of public works and the common council had the effect of fixing the salary of the petitioner under section 213 of the city charter (Laws of 1891, chap. 105, asámd. by Laws of 1901, chap. 228), by which it is provided that the salaries of the employees in the department of public works “ shall be fixed by the commissioner, of public works with the concurrence of the common council.”

. We think the contention of the petitioner cannot be upheld.

The communication to the commissioner óf -public works by the assistant engineers requesting the adoption of a sliding scale of salaries based upon the length of service, giving to assistant engineers, after twenty years’ service, an annual salary of $2,400, approved by the commissioner of public works and taken under consideration by the common council, did not receive its concurrence as to that part of the communication which provided for a salary of $2,400 after-twenty years’ service.

The attention of the common council in passing upon such estimates of the bureau of -engineering was- not called to the fact 'that the commissioner of public works requested that warrants be drawn in favor of the two assistant engineers, petitioner and Buttolph, at the rate of $2,400 a year. Therefore it cannot be said that the common council, by its action in approving such estimates, intended to give its assent or concur with the commissioner of public works in fixing the salary of the petitioner at the sum named.

Our conclusion is that, while the statute does not require any particular or special method or manner of fixing the salaries of the employees of the department of public works, the action of the commissioner in fixing such salaries must be called to the attention of the common council for its action and concurrence. The statute requires the affirmative and express sanction of the common council.

The order. denying the application for a peremptory writ of . mandamus should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  