194 Misc. 182 | N.Y. Sup. Ct. | 1949
Plaintiff seeks a declaratory judgment that at the time of his appointment as a teacher in the public school system he should have received salary credit for outside experience, which he was not allowed. In addition plaintiff asks judgment for the difference between the salary heretofore paid to him and the amount which would have been paid had he received the credit he claims for outside experience.
Plaintiff was appointed as a regular junior high school teacher on February 1, 1938. At the time of his appointment he submitted a statement as to his prior teaching experience, which claimed credit for parochial school teaching from September; 1929, to June, 1932, and from September, 1934, to January, 1938, a total of 6% years. In addition, the récords of the board of education showed that plaintiff had taught as a substitute in the public school system as follows: from February, 1932, to June, 1933 —163 days; from September, 1933, to June, 1934 —188 days; from September, 1934, to June, 1935 — 22 days; from February, 1936, to January, 1938 —153 days.
Plaintiff was given 3 years credit for his prior teaching experience and placed in the fourth-year salary schedule for teachers in the junior high schools. At the bottom of defendants’ Exhibit A is the following: ‘ ‘ Amount of experience credited as equivalent to experience in the Public Junior High Schools of The City of New York up to date of this appointment. No. (0) years, of which — ( —) years is based upon experience other than teaching experience. 3/15/38 (signed) E. S. Canning, Secretary, Board of Examiners.”
It is clear from this statement above the signature of the secretary of the board of examiners that plaintiff received no credit whatsoever for outside experience and that the 3 years
In 1931 (L. 1931, ch. 540) the Legislature amended former section 889 of the Education Law by providing that ‘ ‘ the schedules and schedule conditions fixing the salaries of members of the teaching and supervising staffs * * * -shall be not less than the salaries and salary increments fixed by the schedules and schedule conditions adopted by such board of education * * * and on file in the office of the state commissioner of education on the fifth day of March, nineteen hundred and thirty-one. ’ ’ This statute made it mandatory upon the board of education to give to all new teachers the same credit for outside experience which teachers appointed on March 5, 1931, were entitled to receive (Cottrell v. Board of Education of City of N. Y., 181 Misc. 645, affd. 267 App. Div. 817, affd. 293 N. Y. 792). The statute did not, however, have the same mandatory freezing effect in respect of credits for experience as a substitute teacher in the public school system since the salary schedules on file in the office of the State Commissioner of Education were so worded that it was clear that the granting or withholding of credit for experience as a substitute was intended to rest in the discretion of the educational authorities (Roantree v. Board of Education of City of N. Y., N. Y. L. J., Nov. 19, 1942, p. 1527, col. 6, Miller, J., affd. 266 App. Div. 652).
The regulations of the board of examiners governing salary credit for outside experience which were in effect on March 5, 1931, and which were on file with the State Commissioner of Education, provided (§ 23, subd. 1) that the board of examiners shall “ evaluate the outside experience of such appointee, for the purpose of fixing his initial salary as the equivalent of a certain number of years of experience in teaching in the type of day public school service in the City of New York indicated by the appointee’s license.” Subdivision 4 of section 23 of the regulations reads: “ In calculating outside teaching experience only experience as a regularly appointed teacher serving in day schools on a per annum salary shall be considered. ’ ’ Concededly, plaintiff’s outside teaching experience complied with the requirements of subdivision 4 (supra). If the question were an open one, it might well be argued that the board of examiners, in view of the wording of subdivision 1 of section 23, was not required to give plaintiff a year of credit for each year of his outside teaching experience and that subdivision' 4 of section 23 was merely intended to prevent the board of examiners from giving
Defendants rely on section 214 of the by-laws of the board of education, which defines a teacher’s “ year of experience ”
Defendants also rely upon a by-law reading “ The regulations of the Board of Examiners shall so provide that no appointee shall receive for outside experience a credit greater than he might receive if employed during the same period in rendering similar teaching service in the schools of the City of New York ”. This by-law, however, was not enacted until February 24, 1932, which Avas after March 5,1931, the statutory freezing date. The by-law, therefore, cannot legally alter the credit which plaintiff was entitled to under the schedules and schedule conditions on file March 5,1931.
It follows from the foregoing that at the time of his appointment plaintiff should have been credited Avith 6% years of parochial school teaching. Although his complaint alleges and the answer admits that he also taught from September 19, 1932, to April, 1933, in another parochial school, plaintiff did not mention this experience in the statement filed by him Avith the board of examiners and he is therefore in no position at this late date to claim that he should have been credited, at the time he was appointed with this additional experience.
Under the regulations applicable to junior high school teachers, 2 years of teaching must be deducted from the 6% years (regulation 23, subd. 7a), leaving 4V2 years of experience for which, under that regulation, plaintiff was entitled to 2 years of salary credit. (A minimum of 5 years experience, after deduction of that 2 years, was necessary to entitle a teacher to 3 years salary credit.)
On his appointment as a senior high school teacher, plaintiff became entitled to the salary on the senior high school schedule next above that which he should have been receiving under the junior high school schedule.
As previously observed, the notation at the end of defendant’s Exhibit A indicates that plaintiff was given 3 years credit for experience as a substitute teacher. Since the granting of credit for substitute teaching was entirely within the discretion of the board of examiners, and since a by-law of the board of education adopted February 24, 1932, provided that the combined salary increment credit which could be given for all types of experience (i. e. outside, substitute, etc.) was limited to 3 years, it seems probable that the plaintiff would have been given no credit whatever for substitute experience had the board of examiners anticipated the later holding of the Cottrell case (supra) to the effect that the granting of a credit for outside experience was mandatory and not discretionary. However, this does not avail the defendants in the instant case, for the credit for substitute teaching which the board of examiners in the exercise of its discretion granted to plaintiff may not now be taken from bim merely because the discretion might have been exercised differently had the board of examiners known at the time what the Court of Appeals was to hold some years later. A similar situation obtained in Wakefield v. Board of Education of City of N. Y. (192 Misc. 639). Pencil notations on Exhibit 1 annexed to the answer in that case indicated (p. 641) that the board of examiners had deemed it immaterial whether the 3-year salary
Although it is too late to take from plaintiff credit for substitute experience which the board of examiners in a proper exercise of its discretion gave him, a different situation is presented to the extent that some of the credit given to plaintiff for substitute experience violated a by-law of the board of education which limited credit for substitute experience to that obtained during the period of 5 years immediately prior to the teacher’s appointment. The granting of credit for substitute experience obtained more than 5 years previous to plaintiff’s appointment was improper and illegal under the by-law and plaintiff’s credit for substitute teaching must be reduced accordingly. Under the by-laws of the board of education, substitute teaching was evaluated at the rate of 1 year for each 180 days of substitute experience. During the 5 years immediately preceding the plaintiff’s appointment, he had taught as a substitute only 454 days, which was almost 90 days less than the 540 days necessary to entitle him to credit for 3 years of substitute teaching. He was therefore entitled to receive credit for only 2 years of substitute teaching, and the credit of 3 years given to him must therefore be reduced by 1 year. Although the by-law which limited credit for substitute teaching to the 5 years immediately preceding the appointment of a teacher was not adopted until after March 5,1931, it was nevertheless valid and legal, since it dealt only with the amount of credit to be given for substitute teaching — a matter within the discretion of the board of examiners (Roantree v. Board of Education of City of N. Y., supra).
The defendants also urge that plaintiff is not entitled to credit for both parochial school and public school teaching to the
In view of the fact that 1 year of salary credit must be deducted from the 3 years’ salary credit previously given plaintiff because it was granted in violation of the by-laws of the board of education, the plaintiff is entitled to a total salary credit of 2 years for parochial school teaching and 2 years for substitute teaching, an aggregate of 4 years. He should therefore have received fifth-year salary at the time of his appointment instead of fourth-year salary, and he was entitled to the appropriate increase to the next higher salary in the senior high school salary schedule when he received his appointment as a senior high school teacher in October, 1938.
Various other contentions of the defendants are identical with those made in Wakefield v. Board of Education of City of N. Y. (supra) and overruled both at Special Term and by the Appellate Division. These are (1) the claim that plaintiff has an adequate remedy at law by a proceeding under article 78 of the Civil Practice Act, and that the court should therefore not entertain an action for declaratory judgment; and (2) that plaintiff has been guilty of loches, which constitute good defenses to the action.
Plaintiff’s recovery, however, should be limited to the difference between the salary which he should have received in accordance with the foregoing and the salary which he actually received, for the period of 6 years immediately preceding the commencement of the action plus the additional 30 days which plaintiff was required to wait after service of a notice of claim and demand upon defendants before suit could properly he commenced (Wakefield v. Board of Education of City of N. Y., supra, p. 644). The running of interest is to commence from the date of the service of the notice of claim and demand (see Wakefield v. Board of Education of City of N. Y., supra, as modified by the Appellate Division in respect of interest).
The foregoing represents the decision of the court; findings have been waived. Settle judgment on 5 days’ notice.