118 Misc. 214 | N.Y. Sup. Ct. | 1922
The uncontroverted facts show that the relators are attorneys and counselors at law practicing their profession as copartners; that the board of education of the city of Buffalo, which for brevity will be designated the board, employed the relator Fleischmann to institute and conduct a mandamus proceeding, which will be presently described, and subsequently employed the relators to represent the board in a public investigation of the business management, direction and administration of the affairs of the board authorized by resolution of the city council, which for brevity will be referred to as the council, on the 19th of July, 1920, which designated the defendant to conduct said investigation and appropriated to his credit $5,000 therefor, to be expended on his vouchers. Each employment was without any express agreement with respect to the compensation. The attorneys rendered the services for which they were retained under the first employment and incurred incidental disbursements of the reasonable value and amount of $2,557.94, and under the second employment of $5,000; and an order was drawn by resolution of the board for the aggregate amount thereof in due form. The countersignature of the order by the defendant, as city commissioner of finance and accounts, was a condition precedent to the right of the payees thereof to receive the money from the city treasurer. The defendant refused to countersign the order and attempts to justify his refusal on the grounds that the board of education was not authorized to employ the relators and that no moneys had been appropriated by the city council from which said payment could lawfully be made. By virtue of the provisions of section 865 of the Education Law (Laws of 1910, chap. 140), added to the Education Law by chapter 786
The first employment of the relator Fleischmann was with respect to a controversy which arose between the board and the council with respect to the appropriation made by the council for the board for the fiscal year commencing July 1, 1920; and the second employment, which was of both relators, was occasioned by a subsequent investigation of the board by the defendant by direction of the council.
On the 1st of February, 1920, the board, as required by section 877 of the Education Law, prepared an itemized estimate of the moneys required by the board for the ensuing fiscal year, aggregating $5,811,831, and an estimate of the revenues, aggregating $525,000, it was expected the board would receive from sources other than city taxes, and duly filed said estimates with defendant. A controversy thereupon arose between the council and the board with respect to the authority of the former to revise by reducing the estimate as to the salaries for teachers and other employees. On the 21st of April, 1920, the council reduced the board’s estimate by the sum of $498,230, and of that amount $343,928 was a reduction of the estimated amount for the salaries and compensation of teachers and other employees; and the council increased the board’s estimate of revenues by $5,000; and it adopted the estimates as so reduced and increased, and in so doing included in the budget for the fiscal year under the heading “ Resources to apply on Board of Education Appropriation,” as items of estimated revenue the following: (1) From the state of New York and other sources, $500,000; (2) from the board of education revenue account, $25,000; and (3) from unexpended balance of appropriation for former year for purchase of typewriters, $5,000. The board thereupon determined that it was a matter of public concern that the power and authority of the council over the estimates made by the board should be judically decided, and that to that end a mandamus proceeding should be instituted to compel the council to adopt the estimates as presented by the board. The board requested the corporation counsel to institute and conduct such a proceeding in its behalf, but he refused so to do and advised the board that if such a proceeding were instituted, it would be his duty to represent the council. In said estimates as in its estimates for former years the board included an item for the salary of an attorney to be appointed by it, but the council
As might reasonably be expected, it appears that the controversy between the council and the board with respect to the right of the council to reduce the estimate made by the board as to the salaries and compensation of employees became sharp and acute and was the subject of widespread discussion by the public and in the press; and on July 9, 1920, something over two months after the mandamus proceeding was instituted, the council on the recommendation of the defendant and of the corporation counsel adopted a resolution for a public investigation to be conducted by defendant of the business management, direction and administration of the affairs of the board and of all matters incidental thereto, and making an appropriation therefor, as herein before stated. The asserted authority of the council for such investigation was the decision in Matter of Hirshfield v. Cook, supra, in which
The refusal of the defendant to countersign the order left the relators in no position to make a demand on the city treasurer for the payment of the money, and consequently that official is not a party to the proceeding and his duty in the premises cannot be authoritatively adjudicated. Counsel for both parties, however, have fully argued the points with respect to the right of the relators to have this bill paid by the city, and the learned assistant corporation counsel realizing that it is in the interest of the city to have it adjudicated without further expense whether it is liable for the payment of this bill interposes no objection predicated upon a point of procedure and expressly waived any objection the effect of which, if sustained, might .be to relegate the relators to an action against the city. The corporation counsel through the assistant corporation counsel expressed a wish that without regard to the form of the remedy or the present status of the appropriations the court should decide whether the claim of the relators was a valid enforcible claim against the city. The only point urged in behalf of the city with respect to the appropriation is in so far as it affected the power and authority of the board to employ the relators.
I am of opinion that the board by virtue of its being an independent corporate entity in these unforeseen and emergent circumstances, regardless of whether there was or was not an available appropriation, necessarily had the incidental and implied power to employ attorneys to present to the court for adjudication its contention that it was vested with exclusive authority to determine the extent to which the children of the city should be afforded an opportunity for education, and that its determination with respect to the number of teachers required was neither subject to review by nor the approval of the council. Section 11 of the General Corporation Law (being chapter 23 of the Consolidated Laws, chapter 28 of the Laws of 1909) provides among other things that “ Every corporation as such has power, though not specified in the law under which it is incorporated: * * * 4. To appoint such officers and agents as its business shall require, and to fix their compensation.” That section also provides that subdivisions 4 and 5 thereof shall not apply to municipal corporations, but a board of education is not a municipal corporation within the purview
Section 868, subdivision 2, of the Education Law provides, among other things, that a board of education shall have the power and it shall be its duty to appoint a superintendent of schools, associate superintendents, principals, teachers and other instructors, janitors, and “ other employees and other persons or experts in educational, social or recreational work or in the business management or direction of its affairs as said board shall determine necessary for the efficient management of the schools and other educational, social, recreational and business activities; and to determine their duties except as otherwise provided herein.” And subdivision 10 of said section confers upon such board the power and imposes upon it the duty to perform such other duties and to exercise such other powers “ as may be required to administer the affairs placed under its control and management, to execute all powers vested in it, and to promote the best interests of the schools and other activities committed to its care.” Since, therefore, the employment of attorneys and counsel was reasonably necessary and proper, the board was, I think, expressly authorized by said statutory provisions to employ the relators; but if it were not, I deem it perfectly plain that being a separate corporate entity it necessarily had implied power so to do as incidental to the performance of its functions. Judson v. City of Niagara Falls, supra; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125; O’Brien v. City of Niagara Falls, 65 Misc. Rep. 92; Gould v. Board of Education, 34 Hun, 16; Bassett v. Fish, 75 N. Y. 303; Quintard v. City of New York, 51 App. Div. 233; Matter of Christey, 92 Misc. Rep. 1; Matter of Turrell, 63 id. 502; Matter of Peters v. Justice, 75 id. 504;
Section 880 of the Education Law, so far as here material, provides that all public moneys apportioned to the city by the state, and all funds raised or collected by the authorities of a city “ for school purposes or to be used by the board of education for any purpose authorized in this chapter ” or any other funds belonging to the city and received from any source whatsoever for similar purposes, “ shall be paid into the treasury of such city and shall be credited to the board of education,” and shall be disbursed only by authority of the board of education upon written orders drawn on the city treasurer or other fiscal officer of the city, and such orders shall be signed by the superintendent of schools and the secretary of the board of education or such other officers as the board may authorize and shall specify the purpose for which they are drawn and the person or corporation to whom they are payable; and subdivision 3 of that section provides that it shall be unlawful for a city treasurer or other officer having the custody of city funds “ to permit the use of such funds for any purpose other than that for which they are lawfully authorized and such funds shall not be paid out except on audit of the board of education and the countersignature of the comptroller, and in a city having no comptroller by an officer designated by the officer or body having the general control of the financial affairs of such city.” That subdivision further provides as follows: “ The board of education of such city shall make, in addition to such classification of its funds and accounts as it desires for its own use and information, such further classification of the funds under its management and control and of the disbursements thereof as the comptroller of the city, or the officer or body having the general control of the financial affairs of such city, shall require, and such board shall furnish such data in relation to such funds
If the board was authorized to employ the relators, it is undisputed that the employment was regularly made and that the bill for the services was presented in due form and pursuant to resolutions of the board authorizing the employment. It also appears that on the 27th of June, 1921, the board by resolution duly audited the bill of the relators and directed that the superintendent of schools and secretary of the board draw and sign an order on the city treasurer against the “ board of education revenue account ” for payment thereof and that it be countersigned by defendant, and on that day caused an order so drawn, together with a voucher for the amount and a letter from the board, to be presented to the defendant, thereby notifying him of the action taken by the board and that it called upon him to countersign the order, and on his failure so to do this proceeding was instituted. If I am right in holding that the board without regard to whether an appropriation had been made for it for such services for the fiscal year and without applying for such an emergency appropriation had authority to employ relators, it is quite clear that the defendant could not question such employment or question the amount at which the bill for the services of the attorneys was audited by the board (People ex rel. Wells & Newton Co. v. Craig, supra), and since on the assumption that there was authority to employ the relators, all formalities required by law were duly observed, it was the duty of defendant to countersign the order, for, as already observed, the legislature devolved the responsibility upon the board and upon the city treasurer and not upon him with respect to there being an appropriation and a sufficient balance therein appropriate to the payment of the order.
At the time when the order was presented to the relator to countersign there was a balance of the appropriation made for the board for the fiscal year far in excess of the amount of said order, and it appears that upon the expiration of that fiscal year there remained of the estimate made for the board an unexpended balance of $52,461.80 which was carried over and credited to the revenues of the board for the ensuing fiscal year. And on July 5, 1921, when the relators themselves formally demanded by letter that the defendant countersign the order, there was to the credit of the revenue account of the board an amount far in excess of the amount of said order. It does not appear that the estimate of the board was so itemized or that as allowed by the council it was so itemized
Motion granted.