Opinion
December 23, 1938.
Present — Hagarty, Carswell, Adel, Taylor and Close, JJ.
Order granting an application for an order, pursuant to article 78 of the Civil Practice Act, directing appellants to approve the appointment of petitioner-respondent to the position of "Clerk to the Board of Elections of the City of New York," unanimously affirmed, with ten dollars costs and disbursements. After due adoption of the budget, the appropriation for the position in question could not be rendered void at the instance of an administrative officer and upon his determination that a vacancy should not be filled. Within the amounts appropriated therefor, the board of elections may fix the number and salaries of its employees. (Election Law, § 36.) In People ex rel. Plancon v. Prendergast ( 219 N.Y. 252), and Matter of Dobrovolny v. Prendergast (Id. 280), the positions in question were subject to control of the board of aldermen. The status of the board of elections, on the other hand, is similar to that of the board of education over its supervising and teaching staffs, as set forth in Matter of Fuhrmann v. Graves ( 235 N.Y. 77), and Matter of Reif v. Schwab ( 204 App. Div. 50). In view of the foregoing, it is unnecessary to determine the legality of delegation of budget-making functions to an administrative appointee.