
    Martin M. Spencer, Respondent, v. City of New York, Appellant.
   Appeal by permission of this court from an order of the Appellate Term, affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, in favor of respondent. The action was brought by an employee of the city of New York to recover the equivalent of bonuses paid out of lump-sum appropriations, during his absence on military duty, to similar coemployees then actively engaged in the city’s employ, and for such mandatory increments to his salary as had lawfully accrued during his absence. Order modified by striking therefrom the decretal paragraph and by substituting in lieu thereof a provision that the judgment of the Municipal Court is modified by reducing it to $436.85, with interest, and as so modified order affirmed, without costs. The legislative intent of the board of estimate in appropriating funds to provide cost of living bonus of the low-salaried employees was to reward those employees who remained in city service during the hectic war years and who declined the temptations of higher salaries offered by private industry or the Federal Government. This fact is manifest from the reading of the Mayor’s three messages recommending the appropriations for the cost of living bonus and from the wording of the appropriations themselves. The board of estimate directed the budget director to schedulize those who were to receive the bonus, and his instructions pursuant to three different appropriations specifically excluded those on military leave from receipt of the bonus. It must be presumed that the budget director was carrying out the intention of his superiors. The exclusion of the respondent from the bonus did not violate subdivision 1 of former section 245 of the Military Law. The respondent received, under its provisions, the compensation to which he was entitled. Nolan, P. J., Murphy, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to affirm. [207 Misc. 579.] [See post, p. 846.]  