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

• Decision Date: 09 April 1959
• Citation: 158 N.E.2d 681,186 N.Y.S.2d 1,5 N.Y.2d 430
• Parties: , 158 N.E.2d 681 Richard AUSTIN et al., Respondents, v. BOARD OF HIGHER EDUCATION OF The CITY OF NEW YORK, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 1

186 N.Y.S.2d 1

5 N.Y.2d 430, 158 N.E.2d 681

Richard AUSTIN et al., Respondents, v. BOARD OF HIGHER EDUCATION OF The CITY OF NEW YORK, Appellant.

Court of Appeals of New York.

April 9, 1959.

Charles H. Tenney, Corp. Counsel, New York City (Robert E. Hugh, Leo A. Larkin and Thomas A. Brennan, New York City, of counsel), for appellant.

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

CONWAY, Chief Judge.

On this appeal we are called upon to answer the following question certified to us by the Appellate Division, First Department: 'Was the order of the Appellate Division entered May 27, 1958, proper in denying defendant's motion to dismiss the amended complaint herein pursuant to Rule 106 of the Rules of Civil Practice, on the ground that it appears on the face thereof that the amended complaint does not state facts sufficient to constitute a cause of action?'

The action is one at law in which plaintiffs, six discharged members of the instructional staff of defendant, the Board of Higher Education of the City of New York, who have not been reinstated to their positions, seek to recover damages allegedly resulting from their dismissal. The board attacks the amended complaint upon the ground that 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 an article 78 proceeding.

A proper understanding of this case can be attained only by tracing its history and background.

In 1952 and 1953, while the defendant Board of Higher Education of the City of New York and the Board of Education of the City of New York conducted investigations to eliminate subversives from their respective staffs (see Education Law, Consol.Laws, c. 16, § 3022), certain teachers employed by the Board of Education and various members of the teaching staff of the Board of Higher Education, including the plaintiffs in the present action, were dismissed from their positions under the authority of section 903 of the New York City Charter after they had claimed their Fifth Amendment privilege against self incrimination in their appearances before the Internal Security Subcommittee of the Committee on the Judiciary of the United States Senate. Eight of those persons removed by the Board of Education commenced an article 78 proceeding in the Supreme Court, Kings County, seeking their reinstatement. That proceeding was entitled Daniman v. Board of Educ. of City of N. Y. Six former members of the instructional staff of the Board of Higher Education instituted a similar proceeding in the same court entitled Shlakman v. Board of Higher Educ. of City of N. Y. The plaintiffs here were not among the petitioners in either the Daniman or Shlakman proceedings.

Special Term dismissed the Daniman and Shlakman petitions. Daniman v. Board of Educ. of City of N. Y., 202 Misc. 915, 118 N.Y.S.2d 487. During the pendency of appeals by the petitioners therein, and on May 20, 1953, the plaintiffs in the action now before us entered into a stipulation with the defendant Board of Higher Education. The stipulation bore the title of the Shlakman proceeding and provided, inter alia, that plaintiffs 'shall for all purposes be considered as parties to this (Shlakman) proceeding to the end that the final order or judgment made herein shall apply to and benefit or bind them, as the case may be, with the same force and effect as though they were formal parties petitioner herein.' The attorney representing plaintiffs at the time they signed the stipulation originally represented all of the petitioners in the Shlakman proceeding.

After Special Term had dismissed the Daniman and Shlakman petitions, Harry Slochower, one of the petitioners in the Shlakman proceeding, retained other counsel to represent him upon appeal (the relevancy of this fact will appeal later). Thereafter, the Appellate Division, Second Department, affirmed the determination made at Special Term (Daniman v. Board of Educ. of City of N. Y., 282 App.Div. 717, 122 N.Y.S.2d 905; Shlakman v. Board of Higher Educ. of City of N.Y., 282 App.Div. 718, 122 N.Y.S.2d 286). A further appeal was taken to this court. We, in turn, affirmed (306 N.Y. 532, 119 N.E.2d 373).

Following the affirmance by this court, all of the Daniman and Shlakman petitioners moved in our court for an order either (1) granting a reargument of the appeal so that certain questions of a Federal nature allegedly embraced within the original petitions might be presented to us, or (2) recalling the remittitur and amending it to recite that a question under the Federal Constitution was presented to and necessarily passed upon by this court. We denied reargument and denied the amendment to the remittitur except with respect to the petitioner Slochower. As to him, we amended the remittitur to recite that he had raised three questions of due process under the Fourteenth Amendment to the United States Constitution and that we had passed upon them (307 N.Y. 806, 121 N.E.2d 629).

Separate notices of appeal were filed in the United States Supreme Court by Slochower, appearing by one counsel, and by all the other petitioners, appearing by a different counsel. The Supreme Court dismissed the appeals of all of the petitioners except Slochower for want of a properly presented Federal question (348 U.S. 933, 75 S.Ct. 355, 99 L.Ed. 732), and in the appeal of Slochower the Supreme Court noted probable jurisdiction (348 U.S. 935, 75 S.Ct. 356, 99 L.Ed. 733). On appeal, the Supreme Court reversed our determination, holding that Slochower's removal had been in violation of his constitutional rights, and remanded the case to this court (350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692), petition by the board for rehearing denied (351 U.S. 944, 76 S.Ct. 843, 100 L.Ed. 1470). This court then amended the remittitur to carry out the decision of the Supreme Court (2 N.Y.2d 719, 157 N.Y.S.2d 351), and by order of Special Term Slochower alone was reinstated with back salary.

Pending Slochower's appeal to the Supreme Court, all of the Daniman petitioners and all of the remaining Shlakman petitioners made a motion in this court to amend the remittitur to show that the second of the three Federal questions listed in our memorandum (307 N.Y. 806, 121 N.E.2d 629) as having been raised by Slochower alone was also raised by them, and to certify that other Federal questions were raised by them, or in the alternative, to recall and retain the remittitur pending the decision of the Supreme Court in the Slochower appeal. This motion was denied (308 N.Y. 909, 127 N.E.2d 72). After the Slochower decision in the Supreme Court, the same petitioners again made a motion in this court for reargument, or, in the alternative, to amend the remittitur. That motion was also denied (1 N.Y.2d 855, 153 N.Y.S.2d 231).

Subsequently, the same petitioners moved in the Supreme Court for a rehearing which was denied. A cross motion to dismiss the appeal for want of jurisdiction was granted and a petition for a writ of certiorari to our court was denied (352 U.S. 950, 77 S.Ct. 324, 1 L.Ed.2d 245). Thus, all of the Daniman and Shlakman petitioners, other than Slochower, failed in their endeavor to obtain reinstatement in their article 78 proceedings.

After Special Term had entered the final order directing Slochower's reinstatement, plaintiffs here asserted that, under the previously mentioned stipulation, they were likewise entitled to reinstatement. Accordingly, they made a motion at Special Term, Kings County, (1) for an order to include within the terms of the order reinstating Slochower a provision 'to the end that the determination of the Board of Higher Education terminating the employment of each of them be annulled' (5 Misc.2d 901, 161 N.Y.S.2d 532), or, if the stipulation be not construed as entitling them to such relief, (2) a determination that the stipulation constituted a waiver of the four-month limitation provided for by section 1286 of the Civil Practice Act for the commencement of an article 78 proceeding. The Board of Higher Education made a cross motion for an order to the effect that plaintiffs were bound by the adverse decision in relation to the Shlakman petitioners other than Slochower because plaintiffs and the Shlakman petitioners, other than Slochower, had all been represented by the same attorney. Special Term denied both the motion of plaintiffs and the cross motion of defendant Board of Higher Education (5 Misc.2d 901, 161 N.Y.S.2d 529). That court ruled that an identical, uniform result affecting all of the Shlakman petitioners, rather than one result affecting one petitioner (Slochower) and another result affecting the other petitioners, was made a condition precedent to the entry of a final order to benefit or bind the stipulants and that the condition having failed, no rights under the stipulation accrued in favor of either of the parties thereto. With respect to the question of the alleged waiver of the Statute of Limitations contained in section 1286 of the Civil Practice Act, Special Term wrote (5 Misc.2d 901, 905, 161 N.Y.S.2d 529, 533): 'Stipulants fail to cite, nor has the court found any authority vesting in the court jurisdiction to grant such relief. Nor is there anything in the stipulation to justify a finding that the limitation provided for by section 1286, Civil Practice Act, was intended to be waived.'

No appeal was taken by any party from the said order of Special Term. Instead, plaintiffs served on the Board of Higher Education a notice of claim which reads:

'TO THE BOARD OF HIGHER EDUCATION:

Each of the undersigned hereby presents for adjustment his claim for the...