Abarno v. City of New York

• Decision Date: 22 August 1956
• Citation: 3 Misc.2d 1053,157 N.Y.S.2d 513
• Parties: Charles ABARNO, et al., Plaintiffs, v. The CITY OF NEW YORK and Jacob Grumet, Fire Commissioner of The City of New York, Defendants.
• Court: New York Supreme Court

Page 513

157 N.Y.S.2d 513

3 Misc.2d 1053

Charles ABARNO, et al., Plaintiffs, v. The CITY OF NEW YORK and Jacob Grumet, Fire Commissioner of The City of New York, Defendants.

Supreme Court, Special Term, New York County, Part III.

Aug. 22, 1956.

Wilson, Mangan & Sweeney, New York City (Morris Pottish, New York City, of counsel), for plaintiffs.

Peter Campbell Brown, Corp. Counsel of the City of New York, New York City (Arthur H. Geisler, Asst. Corp. Counsel, New York City, of counsel), for defendants.

MATTHEW M. LEVY, Justice.

The plaintiffs are firemen, first grade, presently employed by The City of New York in its Fire Department. The defendants are The City of New York and the Fire Commissioner of the City of New York. The plaintiffs are some 370 in number, and, for the sake of convenience, they are divided into three groups with a particular plaintiff as representative: Group One, headed by the plaintiff Weiner, represents 337 plaintiffs, who are honorably discharged veterans of World War II appointed from the 1941 Fireman Eligible List; Group Two, headed by the plaintiff O'Boyle, represents 14 plaintiffs, who are honorably discharged veterans of World War II, appointed from the 1937 Fireman Eligible List; and Group Three, headed by the plaintiff Murphy, represents 19 plaintiffs, who are not war veterans and who were appointed from the 1941 Fireman Eligible List. The circumstances of their respective appointments have given rise to this litigation. The action is for back pay, aggregating (in principal sum) about $350,000. The issues now come to the fore by way of the defendants' motion for summary judgment dismissing the complaint, and the cross motion by the plaintiffs for summary judgment striking out the defendants' answer. The crucial facts have been resolved by way of a stipulation between the parties.

Appointments to municipal service positions in the City of New York are determined and governed by the New York City Charter and the Administrative Code. Chapter 6 of the Charter provides, in part, that the Board of Estimate and the City Council shall adopt an executive budget for the fiscal year and that it shall be certified by the Mayor, the Comptroller and the City Clerk. In this budget shall appear the amounts estimated to be required to carry on the municipal functions for the ensuing year, and the budget must 'set forth all the terms and conditions under which' the 'appropriations shall be administered.' The budget of 1945-1946 duly adopted by the Board of Estimate, provided that it 'shall be administered under the following terms and conditions set forth pursuant to Section 123 of the New York City Charter':

'No vacancy in any schedule supporting appropriation for personal service existing on July 1st, 1945 or occurring thereafter during the fiscal year, except for the positions of elected officials and except in the Offices of the Presidents of the Boroughs, shall be filled except upon a certificate issued by the Director of the Budget and then only upon the terms contained in such certificate.

'The head of the agency in which the vacancy exists shall make written application to the Director of the Budget for permission to fill the vacancy showing the Code and line numbers, the title of the position, the number of positions requested to be filled, the rate provided for the vacancy in the schedule and the rate at which it is requested to be filled. The Director of the Budget shall investigate the application and shall either grant or deny it in whole or in part and upon such terms and conditions as may be proper. * * *

'The Comptroller shall not authorize the payment of any compensation to any person appointed on or after July 1st, 1945, except elected officials and except in the Offices of the Presidents of the Boroughs, unless there is on file in his office a certificate of the Director of the Budget authorizing the filling of the vacancy and then only in accordance with the terms and conditions stated in the certificate.'

The budget also provided that:

'Any schedule supporting an appropriation for personal service contained in this budget may be modified at any time by increasing or decreasing the rate of compensation or the number of days or period of time provided for any position, by change of titles, by adding new positions under new or existing titles or by eliminating positions, provided in such schedule, but only by resolution of the Board of Estimate or by the issuance of a certificate by the Director of the Budget countersigned by the Comptroller, approving such modification, and upon such terms and conditions as may be included in the certificate. Said modification may be made by the Director of the Budget countersigned by the Comptroller, upon request or consent of the head of the agency, or upon his own motion where it becomes necessary to keep within the amount appropriated in any code, within the amount scheduled within any line, or in the effectuation of other terms and conditions of this budget. Modifications may also be made by the Board of Estimate without request from or the consent of the head of the agency.'

Section 123 of the Charter reads in part that

'* * * the board of estimate shall have the power to increase, decrease or omit any item in the executive budget or to add any items thereto.'

Section 128 states in part that the

'director of the budget, upon request of the head of an agency, shall, with the approval of the board of estimate, have power during any fiscal year to transfer an appropriation or part thereof from one line to another within the same schedule, provided the total appropriation for the applicable code item is not increased.'

Some time prior to December 1945, the three-platoon system in the Fire Department had been suspended because of manpower shortage during the war. The system was to be resumed as soon as practicable, Section 487a-11.0 of the Administrative Code. On December 17, 1945, the Budget Director issued Certificate No. M-1434, to the effect that the Fire Commissioner's request to fill 595 positions of firemen at ($2000) $2420 per annum was approved, and Code 5705-001 line 5 in the expense budget of 1945-1946, to permit the appointment of additional Firemen, Fourth Grade, at ($2000) $2420 per annum, was accordingly modified. On the same day, the Budget Director also issued Certificate No. S-1706 (which covered the factual situation as represented by the plaintiff Murphy) and Certificate No. S-1707 (which covered the factual situations as represented by the plaintiffs Weiner and O'Boyle). The issuance of these latter two certificates appears to be a duplication of the permission already granted in Certificate M-1434 to the extent that it granted permission to the Fire Commissioner to fill 593 positions of Fireman, Fourth Grade, at the rate of ($2000) $2420 under Code 5705-001, line 16, and one of these certificates (affecting 569 positions) provided that the permission thus granted was on condition that the appointments would be made on December 17, 1945, and that the appointees would be assigned to one tour of duty and paid therefor, and then granted indefinite leaves of absence without pay until they were recalled for actual duty in the department.

On or about December 17, 1945, each of the plaintiffs was certified for appointment as Fireman by the New York City Municipal Civil Service Commission, and received written notice from the Fire Department to appear at Fire Department Headquarters on December 17, 1945, with reference to his certification as such. ¹ On December 17, 1945, the Fire Commissioner issued Special Order No. 213, which read in one part that the following named men (which included the plaintiffs) were appointed as Firemen, and in another part, as follows:

'They shall perform one tour of duty from 4 P.M. until 12 Midnight, December 17, 1945, aftet which they are hereby granted indefinite leaves of absence, without pay, effective at 12:01 A.M. December 18, 1945, until such time as they are assigned to active duty in this Department.'

The plaintiffs appeared on December 17, 1945, the day appointed, and took oaths of office as Firemen, and served on that day the single tour of duty assigned in Special Order No. 213, signed the Fire Department's supplemental payroll for that day and were paid therefor. All save Weiner signed without protest. At the top of the first page of this supplemental payroll appeared the following statement:

'In accordance with Certificate No. S-1707, dated December 17, 1945, issued by the Director of the Budget, the following named are hereby appointed as Ununiformed Firemen in this Department, Bureau of Fire, with compensation each at the rate of ($2000.-) $2420 per annum for a probationary period of six months to take effect at 4 P.M., December 17, 1945 and they will be charged to the Code below.

'They shall perform one tour of duty from 4 P.M. until 12 Midnight, December 17, 1945, after which they are hereby granted indefinite leave of absence, without pay, effective at 12:01 A.M. December 18, 1945, until such time as they are assigned to active duty in this department.'

A similar statement, referring to Certificate S-1708, appeared at the top of the fourteenth page. At the top of the thirteenth page was a similar statement referring to the Budget Director's Certificate No. S-1706, and omitting the final thirteen words--'until such time as they are assigned to active duty in this department.' ²

The plaintiffs were retained on the indefinite leaves of absence for some short periods of time--Murphy until January 6, 1946; and Weiner and O'Boyle until March 31, 1946. They received no compensation for the periods of such absences. When the leaves were revoked, the plaintiffs were ordered to and assigned specific active duty. They have ever since been (and are still) on such duty, and have received (and are receiving) compensation therefor. After such assignments, the...