Hogan v. Board of Education

Gildersleeve, J. I think the board of education had no power to increase the plaintiff’s salary without the action of the board of estimate and apportionment and the board of aldermen. The question depends upon the effect given to section 56 of the Greater Hew York charter (Laws of 1901, ch. 466), which provides that: “Except as in this section otherwise provided, it shall be the duty of the board of aider-men, upon the recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city treasury other than day laborers and teachers, examiners and members of the supervising staff of the department of education.” It seems clear that the plaintiff, a statistician in the defendant’s employ, is not an employee excepted by the language of this section. He is not a day laborer — an examiner — nor is he a member of the supervising staff of the department of education. All employees who are not excluded must be included within the provision of the “ Revised Charter.” The plaintiff should be classified with the persons whose salaries it is the duty of the board of aldermen, upon the recommendation of the board of estimate and apportionment, to determine and fix. This construction is not in conflict with any declaration of law laid down in Gunnison v. New York Board of Education, l76 N. Y. 11, which was essential to a determination [196] of the issues therein presented. The cause of action in that case arose prior to 1903, and was based upon statutory provisions which differ from the present laws. The precise point,decided was that the board of education was the proper party to sue and to be sued in all matters affecting the school funds. It is unreasonable to assume that the court undertook to interpret section 56 of the revised charter, in disposing of a cause of action that arose before its passage. Judicial expressions should be limited to facts under review, and opinions should be construed with reference to those facts. In the recent case of Lester v. Board of Education, decided by Mr. Justice Carr at a Special Term of the Supreme Court, Kings county (N. Y. L. J., July 8, 1909), the learned justice placed an interpretation upon section 56 of the revised charter that accords with my views, when he said: “ Since the revision of the Greater Hew York Charter in 1901, it has been twice decided by the Appellate Division in this Department that the fixation of the salaries of janitors of public schools in the city of Hew York must be made by the board of aldermen under section 56 of the ‘ Revised Charter ’ (People ex rel. Ajas v. Board of Education, 104 App. Div. 162; Farrell v. Board of Education, 113 App. Div. 405). As the complaint alleges only fixation of the plaintiff’s salary by the defendant, the board of education, it fails to allege an essential requirement, as to legal fixation and is therefore demurrable on that ground.” The complaint herein alleges that the plaintiff occupies the position of statistician in the department of education. The department of education is one of the administrative departments of the city of Hew York; and the plaintiff must, therefore, be considered as being in the employ of said city. I conclude that the revision of section 56 of the charter, by the Laws of 1901, chapter 466, divested the board of education of all power to fix salaries of those subordinates employed in the department of education and placed that power in the legislative body of the city, as constituted by the board of aldermen, acting on the recommendation of the board of estimate and apportionment, unless other provision is made therefor by express legislation. [197] The judgment should be reversed, with costs, and the demurrer sustained, with costs. I agree that leave to appeal to the Appellate Division should be granted. If no appeal is taken, plaintiff may plead over upon payment of the costs in this court and in the court below within six days. Seabury, J., concurs in result.