127 Misc. 492 | N.Y. App. Term. | 1926
This is one of-fifteen appeals from summary judgment entered in favor of plaintiff against the board of education of the city of New York. The actions were brought to recover the differences between the salary to which plaintiffs as visiting teachers were paid under salary schedule IV-M of the by-laws of the board, and that to which they were entitled under schedule I-C of such by-laws, pursuant to schedule A-3 contained in section 883 of the Education Law (added by Laws of 1919, chap. 645, as amd. by Laws of 1920, chap. 680), as teachers of special subjects. The board disputed the right of visiting teachers to be classed as special teachers under schedule I-C, and the matter having been carried to the State Commissioner of Education, his determination that they came under such classification was res adjudicata. In an action brought in the Supreme Court to recover back pay for the period prior to the filing of the Commissioner’s decision, the board of education brought up the precise question which had been subsequently disposed of by him, and was again defeated, and the Appellate Division has sustained the Special Term. Only two points raised by the appellant, therefore, require consideration: First, that the by-laws of the board of education require a filing of the claim with the auditor, and secondly, that plaintiffs are not entitled to costs. The first point seems entirely without merit.
The second- point as to the right of plaintiffs to costs rests on •a radically different basis. Section 1498 of the Civil Practice Act provides that such costs cannot be awarded against a municipal ■corporation in an action for a sum of money only, unless the claim at least ten days prior to suit “ was presented, before the commencement of the .action, to the board of Such corporation having the power to audit the same, or to its chief fiscal officer.” Such a claim was admittedly not presented herd: In deciding whether the section applies to the instant casé, wé must consider first, whether the board of education of the city of New York is a municipal corporation within the meaning of the section; and' secondly, whether the facts in the case dispensed with the necessity of presenting such claim. The term “ municipal corporation ” by a definition contained in the then General Corporation Law of the State (Laws of 1892, chap. 687, § 3) included “ a county, town, school district, village and city and any other territorial division of the state established by law with powers of local government.” It was then for the first time that the status of a school district was fixed by the General Revision Act of 1892 as that of a municipal corporation. In Yellow Pine Co. v. Bd. of Education (15 Misc. 58, 60), Mr. Justice Cullen, later chief judge of the Court of Appeals, at a Special Term of this court in Kings county upon this very question in connection with the board of education of the then city of Brooklyn prior to consolidation and the enactment of the charter of the greater city of New York, in 1895, took occasion to say: “ I am inclined to hold that the board of education is now a separate municipal corporation, though doubtless a department of the city government,” and continuing, points out that for certain purposes named, “ the city is a school district. * * * Formerly, trustees of an ordinary school district were only a quasi corporation of very limited powers. Bassett v. Fish, 75 N. Y. 303. But by the General Revision Act of 1892 (Laws of 1892, chap. 687, § 3) school districts are constituted municipal corporations. Since that act, whatever may have been the case before, the board of education would seem to be a corporation.”
The judgment is, therefore, modified by deducting the costs awarded to plaintiff, and as so modified affirmed, without costs.
All concur; present, Bijur, O’Malley and Levy, JJ.