
    Timothy Dolan, App’lt, v. The City of Brooklyn, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Municipal corporations—Firemen—Salaries—-Laws 1887, chap. 582.
    An action will not lie in behalf of an engineer in the fire force of Brooklyn against the city to recover the difference between his salary as fixed by the board of estimate and the sum provided by chap. 582, Laws 1887, before the board has fixed the salary at the sum named in the act. He has a remedy against the board by mandamus, but the city is not in default until the persons designated have fixed the amount of salary and the city has failed to pay the amount so fixed.
    Appeal from judgment dismissing the complaint
    
      F. A. McGloskey, for app’lt; Almet F. Jenks, for resp’t.
   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 receive, as engineers in the uniformed fire force of the city of Brooklyn.

The claims are founded on chap. 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 s, 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.

Barnard. P. J. and Dykman, J., concur.  