
    James H. Flynn, Respondent and Appellant, v. The City of New York, Appellant and Respondent. Canice Cassin, Respondent and Appellant, v. The City of New York, Appellant and Respondent.
    
      Brooklyn fire department — salaries of the inspector and the assistant inspector — they were fixed by the board of estimate, not by the fire commissioners.
    
    Under section,G of title 13 of the charter of the city of Brooklyn (Laws of 1888, chap. 583), providing, “The annual pay or compensation of the 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, and shall not be less than the salaries now paid to said members, and not greater than the following, namely,” the charter expressly mentioning firemen, bell ringers, engineers of steamers and veterinary surgeons, but making no mention of inspectors or assistant inspectors, there being no such positions in the uniformed force of the Brooklyn fire department at the time of the adoption of such charter, the board of estimate had power, when the positions of inspector and assistant inspector in the uniformed force were created in 1891, to fix the salaries of the incumbents of such positions.
    The general provision of the charter of the city of Brooklyn (Tit. 3, § 3) empowering the officer or officers at the head of any department to fix the salaries of the subordinates, did not control the special provision contained in section 6 of title 13 of the charter, or authorize the fire commissioner of the city of Brooklyn to fix the salary of the inspector and assistant inspector.
    Cross-appeals by the plaintiff James H. Flynn and the defendant The City of New York, from a judgment of the Supreme Court rendered in the first above-entitled action and entered in the office of the clerk of the county of Kings on the 27th day of December, 1899, upon the report of a referee.
    Also, cross-appeals by the plaintiff Canice Cassin and the defendant The City of New York, from a judgment of the Supreme Court rendered in the second above-entitled action and entered in the office of the clerk of the county of Kings on the 27th day of December, 1899, upon the report of a referee.
    
      Thomas T. Maguer, for the plaintiffs.
    
      William J. Garr, for the defendant.
   Willard Bartlett, J.:

The plaintiff Cassin was appointed an inspector in the uniformed force of the fire department of the city of Brooklyn on October 4, ■ 1888. The plaintiff Flynn was appointed an assistant inspector in the same force on November 12, 1891. Both these appointments were made after chapter 583 of the Laws of 1888, the last charter of the city of Brooklyn, went into effect. Title 13 of that charter relates to the department of fire, and in section 6 provides as follows: “The annual pay or compensation of the 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, and shall not be less than the salaries now paid to said members, and not greater than the following, namely: For firemen of the first grade at a rate not to exceed twelve hundred dollars per annum;, for firemen of the second grade at a rate not to exceed eleven hundred dollars per annum; for firemen of the third grade at a rate not to exeéed one thousand dollars per annum.” There are further provisions empowering the board of estimate to fix the pay of bell ringers and engineers of steamers and veterinary surgeons. No mention is made of inspectors or assistant inspectors. Cassin was the first inspector ever appointed, and Flynn was the first assistant inspector, as appears from the referee’s findings of fact. It seems to be conceded that -both of the plaintiffs were members of the uniformed force of the Brooklyn fire department. The board of estimate fixed the salary of Cassin at $3,000 a year, and of Flynn at $2,000 a year. In 1894 the fire commissioner undertook to reduce Cassin’s salary to $1,700, and'Flynn’s to $1,300. In these suits the 'plaintiffs have recovered the difference between the lessened compensation, which was paid to them by reason of this reduction by order of the fire commissioner, and the compensation originally fixed by the board of estimate. It appears, however, that in 1895 the board of estimate allowed Cassin $2,000 and Flynn $1,300 a year, and in 1896 and in 1897 allowed them, respectively, $1,700 and $1,300.

I think that the clause which I have quoted from section 6 of title 13 of the Brooklyn charter clearly empowered the board of estimate to fix the annual pay or compensation of these new officers, and that the prohibition against fixing such payor compensation at a lower rate than salaries now paid to said members ” could have no application to the offices of inspector and assistant inspector, which were then non-existent. I do not think we should apply to the uniformed members of the fire department the general provision in the charter (Tit. 3, § 2) empowering the officer or officers at the head of any department to appoint or remove liis or their clerks or assistants and other subordinates and fix their salaries, when we find in the charter a special provision empowering the board of estimate to fix the pay or compensation of such uniformed members.' It seems to me that the special provision should control.

If I am correct in this, the measure of compensation to which these plaintiffs were entitled is furnished by the several resolutions of the board of estimate in regard to their pay, and the result will be to entitle them to recover at the rates originally fixed by the board of estimate until those rates were reduced by the board, and after such reduction at the reduced rates. In other words, I think that the pay or compensation of uniformed members of the department who were officers not specially mentioned in section 6 of title 13 of the charter, was left wholly under the control of the board of estimate by which such pay or compensation might be increased or reduced as the needs of the service should demand.

'The judgments appealed from should, therefore, be modified so as to reduce the amount recovered by each plaintiff by deducting therefrom any sum awarded to him for periods subsequent to the 1st day of January, 1895, and as thus modified should be affirmed, without costs of this appeal to either party.

All concurred, except Jenks, J., not sitting.

. Judgments appealed from modified, without costs, in accordance with the opinion of Bartlett, J.  