Divisich v. Marshall

• Decision Date: 11 July 1939
• Citation: 281 N.Y. 170,22 N.E.2d 327
• Parties: DIVISICH et al. v. MARSHALL et al.
• Court: New York Court of Appeals Court of Appeals

281 N.Y. 170

22 N.E.2d 327

DIVISICH et al.

v.MARSHALL et al.

Court of Appeals of New York.

July 11, 1939.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of an application by Gisella Divisich and another for an order under Civil Practice Act, art. 78, s 1283 et seq., directing James Marshall and others, as and constituting the Board of Education of the City of New York, to make necessary arrangements and take necessary steps to pay petitioners their salaries as teachers of kindergarten classes in the schools of such city for the year 1939-40 and to refrain from altering or amending respondents' budget estimate for such year in respect to such positions or appropriations for such teachers' salaries and from abolishing the positions. From an order of the Appellate Division, App.Div. , 13 N.Y.S.2d 935, reversing an order of the Special Term, which granted such relief, and dismissing the petition, petitioners appeal.

Affirmed. Leonard M. Wallstein, of New York City (Leonard M. Wallstein, Jr., and Benjamin Menschel, both of New York City, on the brief), for appellants.

William C. Chanler, Corp. Counsel, of New York City (Frederick V. P. Bryan, Seymour B. Quel, and Nicholas Bucci, all of New York City, of counsel), for respondents.

Herman E. Cooper and Charles Barasch, both of New York City, for Teachers Union of City of New York, amicus curiae.

CRANE, Chief Judge.

If there be one public policy well-established in this State it is that public education shall be beyond control by municipalities and politics. The Board of Education of the City of New York is not a department of the city government, it is an independent corporate body and may sue and be sued in its corporate name. Education Law (Consol. Laws, c. 16), ss 300, 865; Matter of Fleischmann v. Graves, 235 N.Y. 84, 138 N.E. 745. As early as 1921 (Matter of Emerson v. Buck, 230 N.Y. 380, 130 N.E. 584) we decided that while the municipality must make appropriations of money to run the schools, the expenditure of that money when once appropriated vested solely in the Educational Board. This was followed and cited in Matter of Fuhrmann v. Graves, 235 N.Y. 77, 82, 138 N.E. 743, 744, when this court said: ‘The intent of the Legislature in enacting the Education Law is clear. It imposes upon boards of education, as separate corporate bodies representing the state, the responsibility of furnishing an efficient system of public education (People ex rel. Wells & Newton Co. (of New York) v. Craig, 232 N.Y. 125, 133 N.E. 419), and in this respect they are not subject to or controlled by the city authorities. In order to enable such boards to properly discharge the duties thus imposed, they are clothed with authority to act independently of the city authorities. As to when, how and where the amounts placed at their disposal shall be disbursed, each board exercises an independent judgment, uncontrolled by and in no respect interfered with or influenced by the city authorities.The boards cannot incur a liability or an expense chargeable against the funds under their control except for educational purposes, and this only to the extent of the amounts placed at their disposal. Education Law, s 877, subd. 3, as amended by Laws 1917, c. 786. While such boards are required each year to submit to the city council itemized estimates of the amounts which will be required for educational purposes for the fiscal year (Education Law, as amended by Laws 1917, c. 786, s 877, subd. 1), the council may nevertheless reduce, in its discretion, the total amount thus estimated. (Matter of Emerson v. Buck, supra.)’ See, also, Matter of Fleischmann v. Graves, 235 N.Y. 84, 138 N.E. 745.

The city has the machinery for raising the money by taxation and must see that the total appropriations do not exceed the constitutional limitations. The present charter of the city of New York has not changed this policy no such radical step was even proposed. These cases decided by this court still hold good. Matter of Brennan v. Board of Education, 245 N.Y. 8, 156 N.E. 78, may be added to the list.

The Board of Education of the City of New York must comply with the formula provided in the charter of that city in making its requests or demands for necessary funds, furnishing by line items or other specified methods, the information necessary to enable the Board of Estimate to act intelligently, but otherwise it has full control over those funds wnen appropriated except as controlled by acts of the Legislature mandatory salary payments. Except as to these it may abolish any position at any...