Foy v. Brennan

Breitel, J. Petitioners, car maintainers on the municipal subways in New York City, bring this proceeding under article 78 of the Civil Practice Act. Attacked as invalid are certain resolutions, classifying positions of car maintainers and allocating salaries to such positions. The resolutions were adopted in 1942 and 1943 by the municipal civil service commission, one without the approval of the Mayor and the State Civil Service Commission, and the others with such approval, hut not otherwise in compliance with the statute. The administrative agencies appeal from denial of their motions to dismiss the petition on the grounds that the relief sought is barred as a matter of res judicata; that on the merits petitioners are not entitled to the relief sought; and, lastly, that the proceeding is barred by the short Statute of Limitations (Civ. Prae. Act, § 1286). The petition avers, among other things, that the resolutions purporting to classify and fix salaries for the positions of petitioners in the civil service were invalidly adopted. The alleged invalidity consists in the failure to give notice, conduct hearings and obtain approval of the Mayor and the State Civil Service Commission in accordance with the procedure mandated by the statute (Civil Service Law, § 11, suhd. 2). The order denying the motions should he reversed and the petition dismissed, but only because the petition sets forth its allegations in such confusing form that it is not possible, without unnecessary difficulty and speculation, to spell out the remedy to which petitioners may be entitled. The situation is further confused by the prayer for relief which is improper in that it seeks relief barred by the decision in the earlier and [672] related case in the Court of Appeals. (Matter of Corrigan v. Joseph, 304 N. Y. 172.) In dismissing the petition, however, it is our view that this proceeding is not barred by section 1286 of the Civil Practice Act, and that, consequently, petitioners are entitled to leave to amend their petition. Because the petition attacks the validity of the procedure in the adoption of classification resolutions by the municipal civil service commission, the four months’ Statute of Limitations is not measured from the date of the resolutions but from refusal after demand made upon the commission to adopt proper resolutions. (Civ. Prac. Act, §§ 1284,1286; Matter of Beggs v. Kern, 172 Misc. 556, 566, affd. 258 App. Div. 1049, mod. on other grounds, 284 N. Y. 504; cf. Matter of Moshowits v. La Guardia, 183 Misc. 33, 40, affd. 268 App. Div. 918, affd. 294 N. Y. 830, and Legg v. Brandt, 261 App. Div. 319; see Matter of Cash v. Bates, 301 N. Y. 258, 261.) Indeed, if that were not so, the Court of Appeals would not have considered the merits with respect to wage scales in the predecessor case to this one, nor would it have struck down earlier actions of the board of transportation. (Matter of Corrigan v. Joseph, supra.) With respect to the February 25, 1943, resolution (adopted December 29, 1942, and approved by the Mayor and the civil service commission in February, 1943), the Court of Appeals made it clear that the resolution was not subject to attack in the proceeding before it because the commission was not a party (304 N. Y. at p. 186, footnote). In the present proceeding the commission was made a party. By parallel reasoning, the denial of motion to amend the remittitur in the Court of Appeals, is not determinative, and is at least equivocal, as to the right to raise the question of the validity of that resolution in a proceeding in which the commission is a party. Section 1286 of the Civil Practice Act provides for two kinds of time limitations in proceedings brought under article 78. The first relates to the review of determinations, the second relates to applications to compel performance of a duty specifically enjoined by law. The first is historically associated with certiorari to review a determination, involving the exercise of quasi-judicial discretion, made after hearing by an administrative agency, and with so much of mandamus as related to review of the exercise of administrative (not quasi-judicial) discretion in which a hearing was not required. (Cf. Matter of Consilvio, 112 N. Y. S. 2d 9, Rabin, J.) The second relates historically to so much of mandamus as involved an attempt to compel performance of a ministerial duty imposed by law. [673] (Matter of Amsterdam City Hosp. v. Hoffman, 278 App. Div. 292, Bergan, J. For a fuller historical discussion see Third Annual Report of N. Y. Judicial Council, 1937, pp. 129, et seq.; cf. Matter of Newbrand v. City of Yonkers, 285 N. Y. 164.) Before the 1937 enactment of article 78 of the Civil Practice Act (L. 1937, ch. 526), there was no statutory time limitation on the bringing of mandamus. (See Matter of Williams v. Pyrke, 233 App. Div. 345, 347.) Under article 78, in order to determine whether the limitation is computed from the time the action by the body or officer becomes final and binding or from the time of refusal after demand to perform a duty mandated by law, the question is whether the relief sought is the review and the annulment or modification of a determination involving judgment or discretion, as distinguished from a demand for ministerial action in accordance with law. (Civ. Prac. Act, § 1284.) In cases involving the validity of procedure in the classification of positions or the allocation of salary schedules, the performance of a duty mandated by law is in issue, although the procedure, if properly followed, may result in the application of administrative discretion. Consequently, the limitation is measured from the time of refusal after demand to perform the duty mandated by law, rather than from the time the adoption of the classification of positions or the allocation of salary schedules becomes final and binding. (Toscano v. McGoldrick, 300 N. Y. 156,161; Matter of Williams v. Morton, 297 N. Y. 328, 334; Matter of Powers v. La Guardia, 292 N. Y. 695; Matter of O’Connell v. Kern, 287 N. Y. 297, 301.) Of course, regardless of time limitation statutes, the defense of laches remains available against suitors who have too long rested quiescent upon their rights. (Matter of Amsterdam City Hosp. v. Hoffman, supra.) While it is true that the petition in this case refers to action taken in the past and attacks it as arbitrary, and that is where the emphasis lies, nevertheless, it also attacks such action as illegal for failure to comply with mandated procedural requirements. To that extent it seeks the performance of a duty which petitioner claims is imposed by law on the municipal civil service commission and seeks a direction that the municipal civil service commission make new classifications of positions and new allocations of salary schedules to comply with mandated procedure. This is the classic situation in which the courts have held that the limitation is computed from the time of refusal after demand to perform the duty. (Matter of Beggs v. Kern, 172 Misc. 556, affd. 258 App. Div. 1049, mod. on other grounds 284 N. Y. 504, [674] supra; Matter of Powers v. La Guardia, 292 N. Y. 695, supra; cf. Toscano v. McGoldrick, 300 N. Y. 156, supra.) While it is clear, under the decision in Matter of Corrigan v. Joseph (304 N. Y. 172, supra), that petitioners are not entitled to have the municipal civil service commission fix, prospectively, the salary schedules in the classified graded service to accord with prevailing rates of pay, it is not so clear, laches aside, that petitioners are not entitled to compel the commission to adopt proper resolutions on proper procedure. Nor is it necessary to determine now what retroactive relief petitioners may be entitled to obtain (see, however, the concluding and directory paragraph in the majority opinion in Matter of Corrigan v. Joseph, supra). As pointed out earlier, however, the petition does not make clear whether relief sought relates to the period during which the allegedly invalid resolutions were applicable, or whether petitioners seek to mandate a prospective prevailing-rate-of-wage standard on the administrative agencies, in violation of the holding in Matter of Corrigan v. Joseph (supra). At least, to the extent it seeks the latter relief, the prayer is clearly in violation of that holding. Moreover, in the sequence of resolutions set forth in the petition, it is not possible to differentiate, without conjecture, between those recited merely for historical purposes and those subject to attack. The purposes of pleading and the convenience of the trial dictate, therefore, the dismissal of the petition, but with leave to petitioners to serve an amended petition.