
    Roger A. Palek, Sr., et al., Constituting the Common Council of the City of Utica, Respondents, v Robert D. Spatuzzi, as Member of the Board of Estimate and Apportionment, et al., Appellants.
   — Judgment insofar as appealed from unanimously reversed on the law without costs and paragraph (c) of the adjudging paragraph stricken, in accordance with the following memorandum: Although the court properly declared that the Common Council does not have the authority to increase, diminish, or reject individual salaries established by the Board of Estimate and Apportionment, it erred in declaring that the Board of Estimate and Apportionment may not, without the approval of the Common Council, transfer funds from other accounts established in the budget to salary accounts in order to provide sufficient funds to pay the individual salaries fixed by the Board. Neither the petition nor the answer requested the latter declaration or contained an allegation that transfers had been made; there was no proof of any transfers before the court; and there is no indication in the record that this issue was addressed by the parties. Thus, the court had no authority to decide the issue which was not properly before it (see, Sipos v Kelly, 66 AD2d 1022). (Appeal from judgment of Supreme Court, Oneida County, Tenney, J. —declaratory judgment.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.  