later), and that she be paid her appropriate salary from February 1, 1970. The matter never went to step 3 for arbitration. The Comptroller of the City of New York refused to make the payment and withheld the back pay covering the period February 1, 1970 to August 31, 1970 on the ground that no services had been rendered by the petitioner. Petitioner, who was joined in the petition by the president of the United Federation of College Teachers, sought to mandate payment in an article 78 proceeding. Under
Board of Educ. of Union Free School Dist. No. 3,
Town of Huntington v.
Associated Teachers of Huntington (
30 N Y 2d 122 ), we deal not with a collective bargaining agreement to be followed, but with an attempt to settle a claim of discrimination on the ground of sex by a payment of public funds. If the maternity leave provisions are unfair, then they may be amended, but the satisfaction of individual objections by a gift of public funds is counter to the provisions of section 1 of article VIII of the New York State Constitution. Concur — Kupferman, Steuer and Tilzer, J J.; Markewich, J. P., dissents in a memorandum and Nunez, J., dissents in part in a memorandum, as follows: Markewich, J. (dissenting). On the reasoning of
Board of Educ. of Union Free School Dist. No. 3,
Town of Huntington v.
Associated Teachers of Huntington ( 30 N Y 2d 122 ), I would reverse and order respondent-respondent comptroller to comply with the direction of the Vice Chancellor of the City University to pay petitioner-appellant Antonopoulou’s salary for that portion of the period of maternity leave she had been forced to take against her will. The grievance machinery, recourse to which resulted in the award of lost salary, was established, as the result of collective bargaining between the parties, in their labor contract. There is nothing inherently offensive to law in the subject matter—the forced leave — and it was a proper controversy for grievance procedure. The settlement thereunder is as binding as though set forth in the contract itself, for it was brought about by adherence to and enforcement of the contract’s provisions. Though the contract did not specifically mention this particular type of grievance as arbitrable by use of grievance procedure, it is obvious that no scheme aimed at the preservation of peaceful labor relations is capable of providing in precise detail for each and every possible controversy which might arise during the agreement’s term. The labor agreement was arrived at, pursuant to law, with one authorized city agency, and another arm of the same city should not be permitted to act in contravention thereof. This being so — and the settlement of the vice chancellor being equivalent to an adjudication — what was adjudicated under the grievance procedure was a claim for damages flowing from improper interference with petitioner’s right to perform services and to be compensated therefor. The comptroller characterizes the award of lost pay as an unconstitutional gift for services not rendered (N. Y. Const., art. VIII, § 1), and the majority of the court agrees. It is not. It is an award of damages, pure and simple, measured in the only way possible for a breach of an employment agreement, which, as found in the grievance proceeding, deprived petitioner-appellant Antonopoulou of the right to earn that very amount in salary. This is no more a “ gift ” than any other award of damages for unlawful deprivation of an opportunity afforded by contract. Nunez, J. (dissenting in part). I concur with Justice Markewich except that instead of compensating petitioner-appellant “for that portion of the period of maternity leave she had been forced to take against her will ”, I would direct payment of salary from May 12, 1970. The vice chancellor found that Mrs. Antonopoulou had been lawfully and properly placed on maternity leave. Having so found, he had no power to make a gift of public funds and pay unearned back “salary” for several months. The vice chancellor’s stated