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

• Citation: 216 N.Y. 304,110 N.E. 612
• Parties: PITT v. BOARD OF EDUCATION OF CITY OF NEW YORK.
• Decision Date: 23 November 1915
• Court: New York Court of Appeals

216 N.Y. 304

110 N.E. 612

PITT

v.BOARD OF EDUCATION OF CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 23, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Lewis P. Pitt against the Board of Education of the City of New York. From a judgment of the Supreme Court, Appellate Division, First Department (159 App.Div. 905, 144 N.Y.Supp. 1140), affirming a judgment of the Trial Term, jury waived, in favor of plaintiff for $10.20, upon which judgment was rendered in favor of defendant for $46.65, costs, plaintiff appeals. Reversed, and new trial granted.

Erastus J. Parsons, of New York City, for appellant.

Frank L. Polk, Corp. Counsel, of New York City (Charles McIntyre, of New York City, of counsel), for respondent.

HOGAN.

On the 30th day of June, 1903, the board of aldermen of the city of New York, pursuant to the provisions of the charter of that city adopted a resolution fixing the salary of the position of architectural draftsman in the department of education at $35 per week, which salary was payable monthly at the end of each month. June 1, 1906, the appellant was duly appointed to the position of architectural draftsman in the department of education, and has since performed the duties of that position. From that day to June 10, 1911, he was paid at the rate of $30 a week. On December 19, 1912, he filed a claim and demand for the balance of the salary at $5 per week, amounting to $1,303.56, payment of which was refused, and this action was brought to recover the amount alleged due to him.

[1] Authority to fix the salary of plaintiff was by the provisions of the charter of the city of New York exclusively vested in the board of aldermen and duly exercised by that board, and the board of education was powerless to increase or decrease the amount of compensation so determined under the charter. Kehn v. State of N.Y., 93 N.Y. 291;Hogan v. Board of Education of N.Y., 200 N.Y. 370, 93 N.E. 951;Smith v. Board of Education of N.Y., 208 N.Y. 84, 101 N.E. 791, Ann.Cas.1914D, 406;Glavey v. United States 182 U.S. 595, 21 Sup.Ct. 891, 45 L.Ed. 1247.

[2] Defendant respondent asserts plaintiff cannot recover by reason of the following facts: April 25, 1911, the defendant addressed a letter to plaintiff stating, in substance, that a meeting of the committee on buildings held the previous evening a resolution was adopted for presentation to the board of education increasing his salary, and in connection with the same consideration had been given to the fact that claims had been made by employés for the difference between the amount of salary claimed and the amount of salary received, and inquired of plaintiff whether or not he had made or intended to make such claim against the board of education. The record does not disclose what reply, if any, was made by plaintiff to that letter. On May 23, 1911, plaintiff executed and delivered to defendant a writing wherein, in consideration of the sum of $1 and other valuable considerations, he did release and discharge the defendant from all claims of demands which he might have or may now have for arrears of salary as architectural draftsman or otherwise, and on the 14th day of June, 1911, the board of education adopted a resolution ratifying and approving the action of the committee on buildings in increasing the salary of plaintiff from $30 to $35 a week, taking effect June 5, 1911. The resolution recited the plaintiff had executed the instrument referred to. Counsel for defendant asserts that the release was given by the plaintiff in return for the change of position on the part of the board of education, and, had the latter known that the plaintiff was going to enforce his claim, it could have forthwith abolished his position, and therefore there was a valuable consideration for the release executed by the plaintiff.

It is not clear from the record in this case that any change of position was assumed by defendant otherwise than one favorable to plaintiff. The letter dated ...