
    In the Matter of Jack Alweis et al., Respondents, v. Robert F. Wagner et al., Constituting the Board of Estimate of the City of New York, et al., Appellants.
    Argued June 9, 1964;
    decided July 10, 1964.
    
      Leo A. Larkin, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Irwin L. Herzog of counsel), for appellants.
    
      
      Samuel Resnicoff and Paul Silverstein for respondents.
   Memorandum. Order granting relief in the nature of mandamus against the Board of Estimate reversed and petition dismissed, with costs. The statute under which the Supreme Court Justices of Kings County in January, 1962 fixed at substantial increases the salaries of petitioners for the fiscal year 1962-1963 (Judiciary Law, § 315) was superseded on September 1, 1962 by the constitutional provision which vested in the Board of Estimate of the City of New York “ final determination ’ ’ of the amount of such salaries in the annual budget (N. Y. Const., art. VI, § 29). The Board of Estimate refused to include these increases in its annual budget adopted June 15, 1962. For five sixths of the whole future budgetary period 1962-1963 it was clear to the Justices that the Constitution which had been promulgated before they fixed the higher salaries would have vested final budgetary power in the Board of Estimate. No such manifest right to insist on a legal right about to be terminated by the Constitution is shown as to entitle petitioners to mandamus to compel the Board of Estimate to follow the amount fixed by the Justices during a future period largely governed by a new and inconsistent constitutional policy. Mandamus is usually deemed not available in arguable circumstances of legal right such as these. (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Coombs v. Edwards, 280 N. Y. 361; People ex rel. Sherwood v. State Bd. of Canvassers, 129 N. Y. 360.)

The order should be reversed and the petition dismissed, with costs in this court and in the Appellate Division.

Fuld, J.

(dissenting). The court at Special Term and a unanimous Appellate Division, agreeing with the position taken by the petitioners, granted them an order in the nature of mandamus. Although this court recognizes, as of course it must, a “legal right” in the petitioners to the relief which they seek, it is directing a reversal of that order on the ground that “No such manifest right to insist on [that] legal right * * * is shown as to entitle petitioners to mandamus ”. I cannot subscribe to either the majority’s reasoning or conclusion. The order herein was granted by both courts below and, since consideration of the facts demonstrates that their determination is neither wrong in law nor an abuse of discretion as a matter of law, this court may not properly upset the grant of mandamus. (See, e.g., Matter of Pruzan v. Valentine, 282 N. Y. 498, 501; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464.) The cases cited by the majority to support its reversal are manifestly distinguishable on their facts.

There can be no doubt that, when in January, 1962, the salaries here involved were voted by the Board of Justices of Kings County and submitted to the Board of Estimate for inclusion in the city’s budget, the Justices had the mandatory right and power to fix such salaries and to require the Board of Estimate to provide for them in the budget. (See Matter of Moskowitz v. La Guardia, 294 N. Y. 830, affg. 268 App. Div. 918, affg. 183 Misc. 33; Matter of Henderson v. La Guardia, 294 N. Y. 728, affg. 268 App. Div. 892, affg. 182 Misc. 1071; Matter of Wingate v. McGoldrick, 279 N. Y. 246.) More specifically, the only law in effect both then and in May of 1962, when the Board of Estimate adopted the budget, was section 315 of the Judiciary Law and that statute imposed on the Board of Estimate the duty of including in the budget—which had to be approved by July 1, 1962 (New York City Charter, § 114, now § 112) —the salaries set by the Justices.

The constitutional provision which changed the method of fixing the salaries of court employees paid by the city did not take effect, by its terms, until September 1, 1962 (N. Y. Const., art. VI, § 29). This was after the 1962-1963 budget had gone into effect and it could not be validly revised by the Board of Estimate, except perhaps to make additions to reflect mandatory items. Until the constitutional amendment became operative in September of 1962, it could not diminish or affect the right and power unequivocally given to the Justices by the Judiciary Law provision. What the Board of Justices did in January, 1962 was fully authorized. The petitioners have established a clear legal right to the salaries validly voted to them by the Justices and the order appealed from should be affirmed.

Chief Judge Desmond and Judges Dye, Burke and Bergan concur in Memorandum; Judge Fuld dissents and votes to affirm in an opinion in which Judges Van Voorhis and Scileppi concur.

Order reversed, etc.  