106 Misc. 193 | N.Y. Sup. Ct. | 1919
This motion is for an order directing that a peremptory writ -of mandamus issue directed to the board of education of the city of New York requiring it to rescind the action taken by it purporting to transfer the petitioner from Public School 84 to Public School 100 in the borough of Brooklyn.
The petitioner is a duly licensed janitor-engineer. On. the 16th day of March, 1916, he was duly assigned to duty at Public School 84, borough of Brooklyn, as janitor-engineer and his compensation fixed at $7,068. Subsequently, his compensation was increased to a sum slightly in excess of $8,000. His compensation was regulated by what is called the ‘' measurement ’ ’ system, the janitor-engineer being paid a gross sum. He is required to employ helpers. He has charge of the cleaning, heating, ventilating, etc., of the school buildings as well as of the operation of the boilers, engines and other machinery where required.
On the 11th day of December, 1918, an order was issued by the supervisor of janitors, which was after-wards confirmed by the board of education, purporting to transfer the petitioner from Public School 84 to Public School 100 at the proposed salary of $1,900.80
The respondent contends, first, that this court is without jurisdiction of the controversy, the petitioner’s remedy being solely in an appeal to the commissioner of education, and, second, that the board had the power, in its discretion, to make the transfer in question. In support of the respondent’s contention that the petitioner does not have recourse to the courts without first appealing to the commissioner of education pursuant to section 890 of the Education Law, it relies on People ex rel. Peixotto v. Board of Education, 160 App. Div. 554; affd., 212 N. Y. 463, and Peofle ex rel. Board of Education v. Finley, 211 id. 51. The action in the Peixotto case involved nothing more than a matter of discipline in the ordinary course of the administration of the schools, while the Finley case involved the validity of the action of the board of education in placing the names of the holders of certain licenses on a so-called eligible list. That was an application for a, writ of prohibition and involved only the question of the educational features of the school system, while in the instant proceeding the petitioner urges that he has been deprived of a vested right in violation not only of the Education Law but also of the Civil Service Law in that he has been in effect removed from his position without charges having been preferred against him and without a hearing. And while I do not question that the board of education has power to discipline all employees, including janitors and janitor-engineers, and that upon a pure question of discipline an appeal must in the first instance be taken by an employee to the commissioner of education, yet the question presented here is not one merely of discipline, and the right to maintain this
I have examined all the cases relied upon by the respondent, and it seems that none of them sustains the contention here asserted. The most that any case decides is that the appeal to the commissioner of education is the exclusive remedy only in cases where the decision of the board or other body involves the exercise of discretion in matters clearly within the jurisdiction of such body or board. The act of the commissioner, even though an appeal be taken, is, in no event, exclusive but simply a condition precedent to a resort to the courts. There is no force in the argument that the legislature intended to divest the court of its jurisdiction over rights which had become vested, and confer sole jurisdiction upon the administrative head of a governmental department. Such an attempted exercise of legislative power would, no doubt, be unconstitutional.
The petitioner urges, and it seems to me, with some force, that the action taken against him was not taken in good faith and that the so-called transfer amounts to his removal from his position, which is coneededly in the competitive class, ungraded positions, as shown by the rules and classifications of the civil service commission of the city of New York. I do not doubt the authority and power of the board of education to transfer a janitor-engineer from one school to another school even though there be a decrease in compensation. Such power of transfer is essential to a proper administration of the schools, and, if it were shown upon this application that the transfer here attempted was made in good faith and to a school requiring the services of a janitor-engineer, it would be an unwar
Ordered accordingly.