Foy v. Schechter

• Decision Date: 11 July 1956
• Citation: 136 N.E.2d 883,154 N.Y.S.2d 927,1 N.Y.2d 604
• Parties: , 136 N.E.2d 883 Matter of John FOY et al., Respondents, v. Joseph SCHECHTER et al., Constituting the Municipal Civil Service Commission ofthe City of New York (City Civil Service Commission of the City of New York), et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 927

154 N.Y.S.2d 927

1 N.Y.2d 604, 136 N.E.2d 883

Matter of John FOY et al., Respondents, v. Joseph SCHECHTER et al., Constituting the Municipal Civil Service Commission ofthe City of New York (City Civil Service Commission of the City of New York), et al., Appellants.

Court of Appeals of New York.

July 11, 1956.

Peter Campbell Brown, Corp. Counsel, New York City (W. Bernard Richland and Bernard Friedlander, New York City, of counsel), for Joseph Schechter and others, appellants.

Daniel T. Scannell and Edward L. Cox, Jr., Brooklyn, for Hugh J. Casey and others, appellants.

Jacob K. Javits, Atty. Gen. (Daniel M. Cohen, New York City, James O. Moore, Jr., Albany, and Irving L. Rollins, New York City, of counsel), for Alexander A. Falk and others, appellants.

Arthur Karger, Morris Weissberg and Lester G. Knopping, New York City, for respondents.

VAN VOORHIS, Judge.

Petitioners, John Foy and Sidney Goldman, are welders. They are employed in the New York City Transit System in the position of car maintainer, group D. Foy has held his position continuously (under different titles) since June 3, 1936 and Goldman since March 29, 1951. The issue is whether they are to be paid at the prevailing rate of wage under section 220 of the Labor Law, McK.Consol.Laws, c. 31. Foy was one of the petitioners in the proceeding which was decided by this court in 1952, sub nom. Corrigan v. Joseph, 304 N.Y. 172, 106 N.E.2d 593. Goldman was employed later, consequently he was not a party. Foy, being a party, is bound by the final order in the Corrigan case; Goldman, although not a party, is affected by the precedent under the rule of stare decisis.

The first step is to examine the Corrigan case in order to ascertain whether it is determinative of the issue which is here presented. Foy and others instituted an article 78 proceeding against the City Comptroller, the City Treasurer, the Budget Director and the Board of Transportation to compel payment to them at the prevailing rate of wage under the ruling in Gaston v. Taylor, 274 N.Y. 359, 9 N.E.2d 9, beginning in 1938. That demand was met by the contention on the part of the city that these were graded employees under the Civil Service Law, and as such were not comprehended within section 220 of the Labor Law. Wood v. City of New York, 274 N.Y. 155, 8 N.E.2d 316. This court held in the Corrigan case that from the time when these employees were effectively graded they were not entitled to be paid the prevailing wage under section 220 of the Labor Law. The parties to the instant proceeding do not now question that the grading of civil service employees in the competitive class is inconsistent with their being paid the prevailing rate under section 220.

The issue on the present appeal is crystallized by the following language from the opinion in Corrigan by Judge Lewis, as he then was: 'We thus reach the question which prompted the dissent by two Justices of the Appellate Division, viz., the date upon which the Municipal Civil Service Commission, by resolution, effectively graded appellants' positions.' 304 N.Y. at page 183, 106 N.E.2d at page 597.

The answer to that question was held to have been supplied by subdivision 2 of section 11 of the Civil Service Law, McK.Consol.Laws, c. 7. The preceding subdivision of that section empowers the Municipal Civil Service Commission to 'prescribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of said city, and for appointments and promotions therein and examinations therefor'. Subdivision 2, with which we are immediately concerned, contains the following provision which is material to the present controversy: 'Such rules so prescribed and established, and all regulations for appointment and promotion in the civil service of said cities and any subsequent modification thereof, whether prescribed under the authority of a general law or of any special or local law, shall be valid and take effect only after a public hearing, notice of which has been published for not less than three days, setting forth a summary of the subject matter of such proposals and upon the approval of the mayor or other duly authorized appointing authority of the city and of the state civil service commission.'

In May, 1938, a resolution by the Municipal Civil Service Commission purported to reclassify the positions of employees of this character, and authorized fixation of the maximum and minimum compensation of their wage or salary grades at levels to be established by the Board of Transportation and to be approved by the Municipal Civil Service Commission. That resolution was ratified by the Mayor on June 2, 1938 and by the State Civil Service Commission on July 1, 1938. After nothing these circumstances, this court held in Corrigan that inasmuch as no specific wage schedule had been adopted by the Board of Transportation when that resolution was enacted by the Municipal Civil Service Commission, approval by the Mayor and the State Commission in advance of the adoption of a specific wage schedule was nugatory. The Mayor and the State Civil Service Commission could not delegate their power to approve wage scales to the Board of Transportation, nor could they ratify acts of the Board of Transportation before they had been performed; in order to comply with subdivision 2 of section 11 of the Civil Service Law, it was necessary that specific wage scales should have been adopted by the Board of Transportation, this court held, before they could be approved by the Mayor and the State Commission. Corrigan decided that these employees were not effectively graded by the Municipal Commission's resolution of May, 1938, and that they (including present petitioner Foy) were entitled to receive the prevailing rate of wage under section 220 of the Labor Law without being barred by the Municipal Commission's ineffective grading of them in 1938. Corrigan held that they were barred, however, by a subsequent grading resolution adopted by the Municipal Commission December 29, 1942 and approved proved by the Mayor February 2, 1943 and by the State Civil Service Commission on February 25, 1943. This resolution, like the one of 1938, provided that wage scales were to be established by the Board of Transportation and approved by the Municipal Civil Service Commission. There was a difference, however. Meanwhile specific wage grades had been established and were in operation and effect. Judge Lewis' opinion in Corrigan continues, speaking of the new grading effective February 25, 1943, 304 N.Y. at pages 184-186, 106 N.E.2d at page 597:

'Again, no wage scale was annexed to the resolution, but in February, 1943 as distinguished from 1938 there was a wage scale, adopted by the Board of Transportation and which was approved by the Municipal Civil Service Commission, actually published and in effect.

'In our opinion, the mandate contained in subdivision 2 of section 11 of the Civil Service Law that Municipal Civil Service Commission rules and regulations, and modifications thereof, 'shall be valid and take effect only * * * upon the approval of the mayor * * * and of the state civil service commission' (emphasis supplied) makes invalid the grades sought to be established by the Municipal Civil Service Commission in 1938, because the salaries for such grades had not then been established, much less approved, by the Mayor and State Commission.

'We have seen that salary is the essence of a 'grade', and hence no valid grade may be established until the salary therefor has been fixed. As the statute requires approval by the Mayor and State Civil Service Commission of rules and regulations of the Municipal Civil Service Commission as essential to their effectiveness, we do not believe that such approval may be given by those officials in advance of the actual establishment by the Municipal Civil Service Commission of such rules and regulations. In other words, the approval in 1938 by the Mayor and State Commission of such salaries as may be established 'from time to time' by the Board of Transportation and the Municipal Commission was ineffective. See Burri v. City of New York, 291 N.Y. 776, 53 N.E.2d 242. However, when the Mayor and State Commission approved the second resolution in February, 1943, wage scales although not annexed to the resolution were in existence and in actual operation. We conclude that the approval of the resolution in 1943 carried with it approval of the wage scales then in effect.

'The order of the Appellate Division should be modified by remitting the proceeding to the comptroller with directions that he determine the 'PREVAILING RATE OF WAGES' FOR APPELLANTS WHO may be entitled thereto for the period between July, 1938, and February 25, 1943, and as so modified, the order should be affirmed, without costs.'

Foy recovered at the prevailing rate from July, 1938 until February 25, 1943 in the Corrigan case, but was defeated insofar as he claimed for a period after the latter date. He has now commenced another article 78 proceeding to recover at the prevailing rate for the period after February 25, 1943. That is to say, he is now suing for that part of the relief which he sought but was denied in the Corrigan case.

Foy attempts to escape the bar of that adjudication on the basis that the Municipal Civil Service Commission was not a party in the Corrigan proceeding. That did not stop him from taking advantage of the final order in Corrigan insofar as it allowed him to recover at the prevailing wage rate for the period between July, 1938 and February 25, 1943. This court directed that he recover for the period in spite of the Municipal Civil Service Commission's invalid grading resolution of May, 1938. The circumstance that the Municipal Civil Service Commission was not before the court did not prevent him from recovering. The Civil Service Commission's grading resolution was not...