Alweis v. Wagner

Memorandum. Order granting relief in the nature of mandamus against the Board of Estimate reversed and petition dismissed, with costs. The statute under which the Supreme Court Justices of Kings County in January, 1962 fixed at substantial increases the salaries of petitioners for the fiscal year 1962-1963 (Judiciary Law, § 315) was superseded on September 1, 1962 by the constitutional provision which vested in the Board of Estimate of the City of New York “ final determination ’ ’ of the amount of such salaries in the annual budget (N. Y. Const., art. VI, § 29). The Board of Estimate refused to include these increases in its annual budget adopted June 15, 1962. For five sixths of the whole future budgetary period 1962-1963 it was clear to the Justices that the Constitution which had been promulgated before they fixed the higher salaries would have vested final budgetary power in the Board of Estimate. No such manifest right to insist on a legal right about to be terminated by the Constitution is shown as to entitle petitioners to mandamus to compel the Board of Estimate to follow the amount fixed by the Justices during a future period largely governed by a new and inconsistent constitutional policy. Mandamus is usually deemed not available in arguable circumstances of legal right such as these. (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Coombs v. Edwards, 280 N. Y. 361; People ex rel. Sherwood v. State Bd. of Canvassers, 129 N. Y. 360.) The order should be reversed and the petition dismissed, with costs in this court and in the Appellate Division.