In the Matter of William P. Gosch, Appellant, v. Anton J. Horvath et al., Constituting the Common Council of the City of North Tonawanda, Respondents

In the Matter of William P. Gosch, Appellant, v Anton J. Horvath et al., Constituting the Common Council of the City of North Tonawanda, Respondents. [MAJORITY] Judgment unanimously affirmed, without costs. Memorandum: Petitioner is the Housing Project Manager of the North Tonawanda Housing Authority having been appointed to that position on May 15, 1968 from a competitive civil service list. In 1971 he was placed in Grade XIV Step 3 for city officials and employees who were not represented by. a negotiating unit. Salary increases were granted to some employees in that grade by a new salary schedule adopted by the Common Council of the City of North Tonawanda on December 5, 1975. Petitioner instituted an article 78 proceeding claiming that the failure to include him in this 8% annual increase constituted arbitrary and capricious action by the respondent common council. Petitioner’s salary is required to be approved by the common council under section 32 of the Public Housing Law. The City Charter of North Tonawanda further vests in the common council the power to fix wages of municipal officers and employees (L 1907, ch 752, tit III, § 8, as amd). Thus, the common council’s failure to grant petitioner a salary increase was within its statutory authority and as a legislative act is not subject to judicial review in an article 78 proceeding (Matter of Bartlett v Morgan, 42 AD2d 435, 437). Moreover, even were we to reach the merits of this proceeding we would conclude that the common council’s action was not arbitrary and capricious. (Appeal from judgment of Niagara Supreme Court —art 78.) Present—Moule, J. P., Cardamone, Simons, Dillon and Hancock, JJ.