Gunnison v. Bd. of Educ. of City of New York

• Decision Date: 06 October 1903
• Citation: 68 N.E. 106,176 N.Y. 11
• Parties: GUNNISON v. BOARD OF EDUCATION OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

176 N.Y. 11

68 N.E. 106

GUNNISON

v.BOARD OF EDUCATION OF CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 6, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Walter B. Gunnison against the board of education of the city of New York. From an interlocutory judgment of the Appellate Division (81 N. Y. Supp. 181, 1127), reversing an order of Special Term sustaining a demurrer to the complaint and overruling such demurrer, defendant appeals by permission. Affirmed.

The following questions were certified: ‘(1) Ought the demurrer to the complaint in this action be sustained? (2) In an action predicated upon a claim for salary alleged to be due teachers under the charter of the Greater New York, is the board of education the proper party defendant? (3) In an action to recover teachers' wages or salaries, should not the action be brought against the city of New York?’

George L. Rives, Corp. Counsel (James McKeen, of counsel), for appellant.

Ira Leo Bamberger, for respondent.

O'BRIEN, J.

The question in this case is presented by the demurrer to the complaint. The action was to recover an alleged balance of wages or salary of the plaintiff and other teachers in the public schools of Brooklyn. The defendant demurred to the complaint upon the ground that upon its face it did not state a cause of action, and that the city of New York, and not the board of education, was the proper party defendant. The only question argued is whether the defendant is liable to be sued on account of the matters and things stated in the complaint.

The complaint contains several causes of action separately stated, but all of the same nature and character. One of the causes of action is to recover a sum of money stated to be due to the plaintiff from the defendant as salary or wages, or a balance thereof, as a teacher in one of the public schools of Brooklyn. The other causes of action are to recover a balance of salary or wages alleged to be due from the defendant to the other teachers named in the complaint, the claims for the same having been assigned to the plaintiff. The plaintiff on all the claims demanded judgment for $1,465.20, with the interest thereon from May 1, 1899.

The complaint avers and the demurrer admits the foillowing facts: (1) That the defendant is a public municipal corporation. (2) That prior to the month of April, 1899, the plaintiff, being a duly licensed and qualified teacher, was duly appointed by the board a teacher in the public schools, and rendered services in that capacity, performing all the duties of the position. (3) That the salary of the position had been duly fixed by the board at $500 per month for the month of April, 1899, and but $400 has been paid. (4) That sufficient funds were appropriated to the defendant and apportioned to the Brooklyn schools to pay the plaintiff's salary. (5) That more than ten days before the commencement of the action the plaintiff presented the claim to the defendant, and its financial officer having power to audit and pay the same, and payment or audit was refused. (6) Precisely the same facts with respect to the employment of the other teachers named, with the amount of salary of each per month, and the balance remaining unpaid, and the assignment of each of these claims to the plaintiff. (7) That all the claims were, at least 30 days before the commencement of the action, presented to the comptroller of the city of New York for payment, but that he neglected and still neglects to adjust or pay the same.

On the face of the pleadings the facts are therefore admitted that the defendant, a public municipal corporation, employed the plaintiff and the other teachers named in the complaint to teach in the public schools at the agreed salary or compensation alleged, and as to each teacher that it has refused to pay a part of the compensation, and that the sum specified in the complaint remains unpaid, although the services were fully rendered. It remains to inquire what reasons, if any, exist or can be urged why the defendant cannot be sued on account of the matters and things alleged in the complaint, and why the plaintiff must resort to the city for the recovery of his claims, since that is the contention and the only argument in support of this appeal.

It is admitted on the record that the defendant is a public municipal corporation. It is admitted that it employed the plaintiff and the other teachers at a fixed compensation, and that a part of this compensation still remains unpaid. This appeal cannot be sustained unless it is shown that these facts do not constitute a cause of action against the defendant and do constitute a cause of action against the city of New York.

The city charter provides that the defendant, the board of education, shall administer all moneys available for educational purposes, and, on the facts stated in the complaint and admitted in the demurrer, it is clear that the plaintiff cannot maintain any action against the city. The mere fact that the public money for the support and conduct of the schools is deposited in the city treasury does not affect the liability of the board of education to be sued, not does it, upon the facts stated, create any liability against the city. The city has the custody of the money, but the board must administer and expend all school funds as the representative of the school system, and the financial officer of the city cannot pay out any part of these funds except upon the order and audit of the board. In most of the other counties of the state the county treasurer or some county or town officer has the custody of the school funds, but it cannot be paid out or disbursed except upon the order or audit of the trustees of the proper school district, and these districts are declared to be corporate bodies thus giving them the power of independent action. Laws 1894, p. 1226, tit. 7, c. 556, art. 6, §§ 42-44. So, in the city of New York, the city, of its own motion, has no power to expend or pay out any part of the school funds for the payments of teachers. The plaintiff can make no valid claim against the city until the board of education has audited it through its own proper officer, and when so audited the city has no discretion with respect to payment except in cases of fraud. City Charter, § 149, c. 378, p. 41, Laws 1897. It is important, therefore, to bear in mind that the plaintiff has no claim against the city until the salary alleged to be due to him and the other teachers has been audited or directed to be paid by the board, and it is admitted by the demurrer that the board has refused to audit the claim or in any manner direct its payment. Hence it is a disputed claim.

It was always the law, and is the law still, that an action will lie against the board of education to recover a judgment upon a disputed claim which it has refused to audit or allow. Dannat v. Mayor, etc., of N. Y., 66 N. Y. 585-588. A suit at law against the board is the proper proceeding to compel the adjustment or liquidation of the claim. The procedure for the collection of claims such as this was very clearly laid down by this court in the case last cited, in this language: ‘Under the system that is provided, there was but one way for the board of education to discharge the obligations assumed by its contracts, and that was by a draft drawn upon the city chamberlain, and so long as it was willing to give such a draft its creditors could make no further claim upon it. If it was willing to give a draft, and had done all the law required of it, it could not be sued. It could not draw the money itself, as the draft is required to be made payable to the person entitled to receive the same, and hence a suit to compel it to pay would be an idle proceeding and in contravention of the statute. But if it refused to give a draft, then the creditor's remedy would be against it. If the claim was undisputed, he might by mandamus compel the giving of the draft. If the claim was disputed, he could sue the board of education in its corporate capacity, and, having thus established his claim, then procure his draft. But he would have no claim against the city until he had in some way obtained such a draft as the law required. When he came with such a draft it would be the duty of the chamberlain to pay. If he refused, having the funds in the treasury, he could be compelled by mandamus to pay, or could probably in an ordinary action be made personally liable for his misfeasance.’ The liability of the city begins only when it refuses to honor or pay a draft drawn upon it in favor of the creditor by the board of education. There is not, and never was, any law that would permit a schoolteacher in any of the schools of the city to bring a suit against the city for salary when the right to the salary was disputed by the board of education, and when that body refused to audit or allow it in any form, as in this case.

It is apparent from the general drift of the argument that the learned counsel for the defendant is of the opinion that the employment of the teachers in the public schools, and the general conduct and management of the schools, is a city function, in the same sense as it is in the case of the care of the streets or the employment of police and the payment of their salaries and compensation; but that view of the relations of the city to public education, if entertained, is an obvious mistake. The city cannot rent, build, or buy a schoolhouse it cannot employ or discharge a teacher, and has no power to contract with teachers with respect to their compensation. There is no contract or official relation, express or implied, between the teachers and the City. All this results from the settled policy of the state from an early date to divorce the business of public education from all other municipal interests or business, and to take charge of it as a peculiar and separate function, through agents of its...