
    Robert L. Allen, Respondent, v. The City of New York, Appellant.
    Second Department,
    February 6, 1914.
    Civil service—review of decision of municipal civil service commission—mandamus—action against city of New York for salary — complaint.
    A decision of the civil service commission of the city of New York that an increase in salary of a certain employee is beyond the limit payable to members of his grade, and in violation of section 16 of the Civil Service Law, cannot be reviewed in an action by the employee against the city to recover for the alleged increase in salary.
    The remedy is by mandamus under section 20 of the Civil Service Law.
    An employee cannot maintain an action against the city of New York for salary due, unless his complaint shows a legal default on the part of the city in not making payment.
    Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of July, 1913, overruling a demurrer to the complaint and directing judgment for the plaintiff, and also from the judgment entered thereon in said clerk’s office on the 1st day of August, 1913.
    
      James D. Bell [Charles J. Druhan and Archibald R. Watson with him on the brief], for the appellant.
    
      Gustav Gunkel, for the respondent.
   Carr, J.:

The defendant appeals from an order of the Special Term that overruled its demurrer to the complaint in this action and directed entry of final judgment in favor of the plaintiff, and likewise from the final judgment so entered. The plaintiff sues to recover certain amounts as salary or compensation accruing to him as a member of the classified civil service of the city of New York. This position, classified as an “Assistant Engineer,” had been graded by the municipal civil service commission pursuant to the directions of the Civil Service Law (Consol. Laws, chap. 7; Laws of 1909, chap. 15). He claims that he is entitled to an annual compensation of $2,700, while he has been paid in fact an annual compensation of but $2,250. In his complaint he sets up various facts in support of his claim for the larger amount, and he shows that he has been paid by the comptroller on monthly payrolls based upon the lesser amount and that he has receipted for such payments under protest. Assuming that he is right in his contention as to the lawful amount of the annual salary to which he is entitled, yet he cannot maintain an action against the city of New York unless his complaint shows a legal default on the part of the city in not making payment. The city can pay the plaintiff’s claim only in the manner authorized by statute (Greater N. Y. Charter [Laws of 1901, chap. 466], § 149, as amd. by Laws of 1912, chap. 398), that is, on a duly authenticated payroll from the department of the city government in which the plaintiff is employed. But even on such a payroll its disbursing officer cannot make payment unless the payroll contains a certificate of the municipal civil service commission as provided in section 20 of the Civil Service Law (as amd. by Laws of 1909, chap. 240). The plaintiff does not claim that any payroll for his salary in the amount he claims was ever certified to the comptroller by the civil service commission, or even that such a payroll was ever transmitted to that body by the president of the borough of Brooklyn, who is his superior officer. His complaint shows that the borough president notified the civil service commission that he had raised the plaintiff’s salary to $2,700 per annum, but that body immediately refused to recognize this increase in salary as legal, and protested that it was in violation of section 16 of the Civil Service Law, in that the increase in salary was beyond the limit of salary payable to the classified grade of position then held by the plaintiff, and was, therefore, in fact a promotion, which required a competitive examination for its attainment. The complaint then shows that the borough president immediately rescinded his action in making an attempted increase of the_ plaintiff’s salary. The ' whole object of the plaintiff’s present suit is to review the propriety of the decision of the civil service commission. This cannot be done by an action against the city. The civil service commissioners are not the agents of the city. Although the members of the municipal civil service commission are local officers, they act, not for the municipality, but for the public in carrying out the provisions of the State Civil Service Law. They are not the servants of the municipality.” (Slavin v. McGuire, 205 N. Y. 84, 87.) The city by its disbursing officer can make no legal payment to the plaintiff without the certificate of the civil service commission; hence, without such certificate, it cannot be said to be in default,.in order to support the maintenance' of an action on the plaintiff’s claim. His remedy is by mandamus, which is expressly granted by section 20 of the Civil Service Law (as amd. supra). Hence, his complaint states no cause of action and the defendant’s demurrer should have been sustained. This conclusion is unavoidable whatever be the merit of the plaintiff’s contention as to the alleged increase in his salary. The record before us does not set forth many of the important facts which both parties discuss in their respective briefs on this appeal, and, therefore, we refrain from expressing opinion on any question not presented to us by this record.

The order overruling the demurrer and the final judgment entered thereon should be reversed, with costs, and the demurrer should be sustained, and final judgment directed for the defendant dismissing the complaint, with costs.

Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.

Order overruling the demurrer and final judgment entered thereon reversed, with costs, and the demurrer sustained, and final judgment directed for defendant dismissing the complaint, with costs.  