Austin v. Board of Higher Ed. of City of New York

• Decision Date: 18 December 1957
• Citation: 9 Misc.2d 253,170 N.Y.S.2d 7
• Parties: Richard AUSTIN, Joseph Bressler, Hyman E. Gold, Elton Gustafson, Oscar Shaftel and Murray Young, Plaintiffs, v. The BOARD OF HIGHER EDUCATION OF The CITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 7

170 N.Y.S.2d 7

9 Misc.2d 253

Richard AUSTIN, Joseph Bressler, Hyman E. Gold, Elton Gustafson, Oscar Shaftel and Murray Young, Plaintiffs, v. The BOARD OF HIGHER EDUCATION OF The CITY OF NEW YORK, Defendant.

Supreme Court, Special Term, New York County, Part III.

Dec. 18, 1957.

Osmond K. Fraenkel, New York City, for plaintiffs.

Peter Campbell Brown, Corp. Counsel, New York City (Michael A. Castaldi, sp. counsel, New York City), for defendant.

JOSEPH A. GAVAGAN, Justice.

In this action at law, the plaintiffs, six discharged employees of the Board of Higher Education of the City of New York, the defendant herein, seek to recover their salaries from the time of their discharge. The gravamen of the amended complaint is that the dismissal of the plaintiffs was predicated on an unconstitutional section of the City Charter and that they were dismissed without a hearing in violation of the statutory rights attendant upon their tenure of service. The defendant moves to dismiss the amended complaint for insufficiency on the ground that the only remedy for the relief plaintiffs seek is in the nature of mandamus under article 78 of the Civil Practice Act, and that a proceeding thereunder would be barred by the four months' statute of limitation ( § 1286, Civ.Prac.Act).

The facts alleged in the pleading under attack are not in dispute. The plaintiffs while in the defendant's employ had acquired tenure of service in their respective positions as Registrar's assistants in the College of the City of New York, as instructors and assistant professor at Brooklyn College and as assistant professor at Queens College. On March 16, 1953, the plaintiffs were dismissed without a hearing on the sole ground that each of them, in violation of section 903 of the New York City Charter, had asserted his privilege against self-incrimination under the Fifth Amendment to the Federal Constitution when questioned about membership in the Communist Party by a Sub-committee on Internal Security of the United States Senate.

Prior to the plaintiffs' dismissal, seven other employees of the defendant had been dismissed on the same ground. Those seven had brought an article 78 proceeding in Kings County (Shlakman v. Board of Higher Education, 202 Misc. 915, 118 N.Y.S.2d 487) claiming, as plaintiffs do here, that their summary dismissal without a hearing deprived them of due process in violation of the Fourteenth Amendment to the United States Constitution. During the pendency of that proceeding, the plaintiffs in the present action entered into a stipulation with the defendant to the effect that the parties herein would be bound by the final order to be entered in the Shlakman proceeding. The plaintiffs at bar took no legal action at that time.

The Shlakman proceeding resulted in an affirmance of the dismissals by the Court of Appeals (306 N.Y. 532, 119 N.E.2d 373) and appeals to the Supreme Court of the United States. There, six of the petitioners in the Shalkman proceeding failed to obtain certiorari on the ground that they had raised no federal questions in the Court of Appeals (307 N.Y. 806, 121 N.E.2d 629, appeal dismissed sub nom. Daniman v. Board of Higher Education, 348 U.S. 933, 75 S.Ct. 355, 99 L.Ed. 732); and only the seventh, Harry Slochower, was granted a hearing. It was in the Slochower case, Slochower v. Board of Higher Education (350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692) that the Supreme Court, held unconstitutional the application of section 903 of the City Charter to the invocation of the privilege under the Fifth Amendment before a Sub-committee of Congress.

The Court of Appeals thereafter adopted the order of the United States Supreme Court and directed the reinstatement of Slochower with back pay. Slochower then moved at Special Term, Kings County, for an order implementing the decisions of the United States Supreme Court and the Court of Appeals.

Plaintiffs herein, relying on their stipulation, moved for a similar order. This defendant cross-moved for an order relegating the plaintiffs to the same position as the six unsuccessful petitioners in the Shlakman proceeding for the reason that the plaintiffs and the unsuccessful six had all been represented by the same attorney. The motion and the cross motion were both denied by Mr. Justice Hart (Shlakman v. Board of Higher Education of City of New York, 5 Misc.2d 901, 161 N.Y.S.2d 529) on the ground that the stipulation contemplated only a single determination affecting all seven Shlakman petitioners and since this had not occurred the stipulation had no legal effect. There was no appeal taken by either party from the order entered on that decision.

It is further alleged that the plaintiffs have, as defendant knows, been desirous of performing their respective duties and have always been ready, willing and able to do so. The defendant has refused to pay any salary to the plaintiffs since their dismissal.

The chief challenge to the sufficiency of the complaint is that the plaintiffs have chosen the wrong remedy; that, as discharged employees of the defendant, they have no redress for unpaid salary in an action at law and that their exclusive remedy is an article 78 proceeding. The plaintiffs, on the other hand, contend that their summary dismissal, predicated on an unconstitutional statute and ordered without a hearing, did not involve an exercise of discretion so as to limit their remedy to a mandamus proceeding.

Plaintiffs rely heavily on the suthority of Toscano v. McGoldrick, 300 N.Y. 156, 89 N.E.2d 873. There, Toscano, prior to his death, held a position as an interpreter for the City which position, together with others, was abolished by the adoption of a new budget and he was thereupon dropped from the payroll. Subsequently, after the Court of Appeals found that the new budget was unlawful and the former budget legally in effect (Dixon v. La Guardia, 277 N.Y. 84, 13 N.E.2d 450) and after a further futile attempt to abolish those positions (Rushford v. La Guardia, 280 N.Y. 217, 20 N.E.2d 547), the City voluntarily restored Toscano to the payroll on certain conditions including his consent to a leave of absence without pay for the period of his illegal ouster. Following Toscano's death, his widow, as administratrix, instituted an action to recover, among other things, his salary for the period of his illegal ouster from the payroll. The City successfully challenged in the lower courts the widow's right to bring an action at law for unpaid salary on the theory that her only remedy was by way of mandamus under an article 78 proceeding. However, the Court of Appeals (300 N.Y. 156, 160, 89 N.E.2d 873, 874) found (1) that when the City restored Toscano it was only...