201 N.Y. 457 | NY | 1911
Sara F. Pettit, a teacher in the public schools of the city of New York during the period between June 1st, 1900, and November 1st, 1906, presented a claim for salary for that period in excess of the salary actually paid to her. The claim was rejected, and thereupon she assigned it to the plaintiff, who thereafter brought this action. The trial, which was had before the court without a jury, resulted in a decision dismissing the complaint upon the merits. The judgment entered upon that decision was unanimously affirmed at the Appellate Division, except as to two findings of fact to which we shall advert further on. The plaintiff has availed himself of permission to appeal to this court and the case is now before us for review.
On or about the 1st day of January, 1881, the plaintiff's assignor was appointed assistant teacher in one of the schools of New York under a temporary license which had previously been duly issued to her. This was followed by a permanent license in March, 1883, under which she served as assistant teacher until November 5th, 1890, when she was appointed a regular grammar school teacher pursuant to a superintendent's certificate stating that she had been examined and found qualified. In February, 1892, she was appointed to the position of *460
general assistant in School No. 68, where she was then employed as a teacher. She continued to serve as general assistant until July 14th, 1897, when that position was abolished by the by-laws of the board of education which were adopted pursuant to authority derived from the legislature. When the position of general assistant was abolished as stated, there was created another position known as "Assistant to Principal." The complaint alleges that the duties and requirements of these two positions were of the same general nature and character, and that the plaintiff's assignor continued in the performance of the same or similar duties until November 1st, 1901, when she was directed by the principal of School No. 68 to take charge as teacher of a class in said school designated as class 6 B in the female department, and since that time she has been performing the duties appertaining to teachers of that grade. These facts, taken from the complaint and the stipulation of counsel, indicate that as to the greater part of plaintiff's claim this action is sought to be maintained, not upon the theory that the plaintiff's assignor did in fact perform service of a higher grade than that for which she has been paid, but upon the assertion that, from November, 1901, to November, 1906, she was wrongfully prevented from performing the duties and receiving the salary incident to a position to which she was lawfully entitled, and from which she was unlawfully transferred to a position of lower grade and lesser salary. If that is the correct view of this case, the plaintiff is clearly not entitled to recover for that period. Although the plaintiff's assignor was not a municipal officer within the generally accepted definition of that title, she was a municipal employee whose rights and duties were analogous to those of a public officer. Under the authorities, a municipal officer who has been unlawfully removed from his position and has acquiesced in the removal, cannot recover the salary incident thereto during the period in which he has performed no service. In such a case the person claiming to have been injured by the removal must seek re-instatement in a direct proceeding *461
brought for that purpose, and the question cannot be tried in an action for salary. (Hagan v. City of Brooklyn,
This view of the case disposes of the greater part of plaintiff's claim, but it still leaves for our consideration that portion which covers the period between June, 1900, and November, 1901. That is the period between the time when chapter 751 of the Laws of 1900, known as the Davis Law, took effect, and the date when the plaintiff's assignor was ordered and directed to teach a class. The Davis Law, it is to be observed, provides that no "female assistant to principal in said school shall receive less than $1,600 per annum after ten years of service," and the question which we are now considering is whether the plaintiff's assignor was entitled to salary at that rate from the time when the Davis Law went into effect until November 1st, 1901. The allegation of the complaint is that she "continued in the performance and discharge of her said duties as assistant to principal of said Female Department of grammar school known as No. 68 until on or about November 1st, 1901." It will be noticed that the part of the plaintiff's claim which covers this period rests upon an allegation of service actually performed as distinguished from the asserted right to perform the higher service and to draw the increased salary. But the allegation is not supported by proof. The *462
claim seems rather to be predicated upon the fact that from 1897, when the position of general assistant was abolished and the position of assistant to principal was created, the plaintiff's assignor continued to perform the duties of general assistant until November, 1901, when she was assigned to the work of teaching a class. This, indeed, seems to have been the theory upon which the case was tried as to the whole of the plaintiff's claim. We will, therefore, consider the case as though the plaintiff's assignor had performed the duties of general assistant during the whole of the period for which the plaintiff seeks to recover, for the purpose of ascertaining whether, even upon that theory, the plaintiff was entitled to judgment. The findings are that in 1892 the plaintiff's assignor was appointed general assistant in Public School No. 68; that this position was abolished in 1897; that under the by-laws of the board of education, adopted in 1897, the position of assistant to principal was created; that under said by-laws "assistants to principals shall be selected and assigned to duty by the principal, but subject to the approval of the City Superintendent;" that plaintiff's assignor was not at any time after the adoption of the said by-laws appointed assistant to principal in Public School No. 68; that plaintiff's assignor, after the creation of the position of assistant to principal, and down to November, 1901, when she was ordered to teach a class, continued to perform the duties which she had performed as general assistant. In these findings there is no suggestion that the duties of general assistant were the same as those of assistant to principal, and if we should stop here it is evident that the plaintiff, upon his own showing, has failed to make out a case; but in this connection our attention is directed to the thirteenth and fourteenth requests of the plaintiff which were marked found by the trial court. These findings are to the effect that the plaintiff's assignor continued in the performance and discharge of the duties of assistant to principal, etc., until on or about November 1st, 1901, when she was ordered to take charge of a class; that no charges of misconduct were ever preferred against her, and *463
that her transfer from the position of assistant to principal to the lower position of class teacher was made without cause, etc. It is to be noted, however, that the material parts of these two findings are not embraced in the unanimous affirmance, but are expressly excepted from it by the amended order of affirmance entered at the Appellate Division. As to the purpose of this amended order there can be no mistake. Since the learned justice had made the direct or main finding that the plaintiff's assignor had never been appointed to the position of assistant to principal and had performed no other duties than those of general assistant, his granting of the requested findings was plainly inadvertent in so far as they carried the implication that the plaintiff's assignor had either been appointed to the position of assistant to principal or had ever performed any of the duties of that position. These requested findings having been disaffirmed, or at least not affirmed, we may go to the record to see if they have the support of any evidence, and upon this point we are left in no doubt. The stipulation of counsel is to the effect that the plaintiff's assignor was not appointed assistant to principal as required by law, and that until November, 1901, she performed the duties enumerated in the twelfth paragraph of the complaint. There is no evidence that the duties thus enumerated are the same as those of an assistant to principal, and, therefore, the thirteenth and fourteenth findings, made at the plaintiff's request, are without the support of evidence in so far as they indicate that the plaintiff's assignor ever performed any of the duties of assistant to principal or that she was ever transferred from that position to a lower one. Upon the record before us, therefore, the decisions of the courts below were plainly right, and we should end the discussion here but for the fact that the case is one of a class as to which there has been some confusion in the decisions. In 1908 we affirmed without opinion the case ofJohnson v. Board of Education of the City of New York
(
The position of general assistant was abolished on or about July 14th, 1897. That was accomplished by means of a by-law which (under L. 1896, chap. 387, sec. 11) the board of education had power to adopt. As the law then stood the board had the right to abolish positions and to remove any or all teachers. (People exrel. Callahan v. Bd. of Education,
The judgment of the Appellate Division, affirming the judgment entered upon the decision at Special Term, should be affirmed, with costs.
CULLEN, Ch. J., GRAY, VANN, WILLARD BARTLETT and CHASE, JJ., concur; HAIGHT, J., absent.
Judgment affirmed.