Austin v. Board of Higher Education

Appellate Division of the Supreme Court of New York

Austin v. Board of Higher Education

5 A.D.2d 664, 174 N.Y.S.2d 511, 1958 N.Y. App. Div. LEXIS 5713

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 1958

StatusPublished

This text of 5 A.D.2d 664 (Austin v. Board of Higher Education) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Austin v. Board of Higher Education, 5 A.D.2d 664, 174 N.Y.S.2d 511, 1958 N.Y. App. Div. LEXIS 5713 (N.Y. Ct. App. 1958).

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Opinions

Beeitel, J.

Plaintiffs appeal from dismissal of tbeir complaint on motion for legal insufficiency. Taking tbe complaint as true, as we must, plaintiffs were unlawfully dismissed from tbeir positions in tbe city colleges under tbe Board of Higher Education of tbe City of New York. Tbe dismissals occurred in 1953, following tbe pleading by plaintiffs of tbeir privilege against self incrimination in bearings before a United States Senate Subcommittee. These dismissals were pursuant to tbe provisions of section 903 of tbe New York City Charter.¹ Since then, tbe United States Supreme Court in tbe case of Slochower v. Board of Educ. (350 U. S. 551) has held that tbe statute in its application to another person, a Professor Slochower, similarly situated, constituted a violation of due process and was, therefore, unconstitutional. On tbe remittitur, Professor Slochower was reinstated and received accrued salary less bis earnings during tbe period (Matter of Daniman v. Board of Educ., 2 N Y 2d 719).² On this basis plaintiffs in this action at law seek [666]*666to recover salaries accrued from the time of their dismissals to the commencement of the action.

The first question is whether the dismissals of plaintiffs involved any act of discretion or quasi-judicial determination. If so, plaintiffs are time-barred, because they must first have sought review of the discretionary or quasi-judicial determination in an article 78 proceeding under the-' Civil Practice Act. Such a proceeding must have been brought within four months after the determination had become final and binding (Civ. Prac. Act, § 1286; Matter of Foy v. Brennan, 285 App. Div. 669). Nor may the time be indirectly extended by bringing an action rather than the special proceeding (Colodney v. New York Coffee & Sugar Exch., 4 A D 2d 137, affd. 4 N Y 2d 698). Such an action, of course, would have to be in equity because until the discretionary or quasi-judicial determination had been upset, there would be no legal right to recover the accrued salary. (Barry v. Mulrain, 1 A D 2d 623.) If the dismissals, however, involved neither an act of discretion nor a quasi-judicial determination, then remedy by action or proceeding may be obtained within four months after demand on defendant to perform the duty specifically enjoined on it by law, namely, to reinstate plaintiffs in their positions or to pay them their salaries (Civ. Prac. Act, § 1286; Matter of Foy v. Brennan, 285 App. Div. 669, supra).

The dismissals were automatic, involving neither an act of discretion nor a quasi-judicial determination. Section 903 of the charter provides that a city employee’s employment shall, in the event he claims the privilege against self incrimination in the circumstances described, terminate and the employment be vacant. The statute provides for a self-executing forfeiture. No further action is required. No further action was taken by defendant except to dismiss in response to the clear and unqualified mandate of the statute. Thus, too, no hearings were required and none were held; no charges were placed; nor any findings made, as would have been required had these employees been removed for cause under provisions of the Education Law. In this very context, the Court of Appeals has said that the claiming of the privilege to which section 903 is applicable is equivalent to a resignation (Matter of Daniman v. Board of Educ., 306 N. Y. 532, 538).³

The next question is whether plaintiffs must first have obtained reinstatement to their positions from which they had been [667]*667illegally dismissed, before they may seek to recover accrued salary, A parallel question is whether an article 78 proceeding is the exclusive remedy for plaintiffs, either to effect reinstatement or to recover accrued salary, or at least to effect reinstatement as a condition precedent to an action for recovery of accrued salary,

Gases of not so long ago asserted not only that a municipal employee illegally removed must promptly obtain reinstatement by mandamus (now embraced in an article 78 proceeding), but also that reinstatement is a condition precedent to recovery of accrued salary to which he was entitled (Matter of Barmonde v. Kaplan, 266 N. Y. 214; Thoma v. City of New York, 263 N. Y. 402).

More recently, however, the Court of Appeals has held that a proceeding in the nature of mandamus is not the exclusive remedy for one illegally removed but that an action at law may lie to recover accrued salary so long as only a clear legal right was involved, uncomplicated by an act o,f administrative discretion or quasi-judicial determination (Toscano v. McGoldrick, 300 N. Y. 156), Thus, too, this court has since stated, rather broadly, that the Toscano ease was authority for the proposition ‘ • that an action at law is available for an illegal ouster from a civil service position”, provided no act of discretion was involved (Barry v. Midrain, 1 A D 2d 623, 625, supra).

Moreover, the Toscano case expressly distinguished the Thoma and Barmonde cases, pointing out that in each of those cases the plaintiff and petitioner, respectively, was not entitled to the accrued salary claimed on any theory or in any proceeding, and, therefore, the cases were not authority for the contention that a proceeding in the nature of mandamus is the exclusive remedy to recover legal pay.

It is true that in the Toscano case the employee had been voluntarily reinstated and in that connection waived all his rights to accrued salary. But this was not an operative fact for the court pointed out that the municipality had done only what it was bound to do, and the waiver was an illegal coercion. Thus, the case may be properly interpreted to stand for the proposition that Toscano would be regarded as having all the rights of reinstatement because he was clearly entitled to reinstatement, and the municipality in effecting his reinstatement was powerless to support a condition of waiving* accrued salary. If Toscano had refused to waive his accrued salary, had stood on his legal rights, and as a consequence had not been reinstated, there, is no doubt that his widow would have prevailed, nevertheless, in recovering the accrued salary. Otherwise it would mean [668]*668that the municipality could have profited from practicing what the court described as an illegal coercion. The voluntary reinstatement, moreover, was not posited by the court as a basis for sustaining the action at law, which, if that had been done, would have brought the case more in line with the ratio decidendi in the Thoma and Barmonde cases. Instead, the court rested its holding on the right of the employee to alternative remedies, rejected the statements in the Thoma and Barmonde cases, and emphasized the discretionary (and therefore uncertain) character of a proceeding in the nature of mandamus (as it had many years before, in Steinson v. Board of Educ., 165 N. Y. 431).

Taking, then, the complaint as true, it should not have been dismissed. This does not mean that the Slochower case (350 U. S. 551,

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Beeitel, J.

Plaintiffs appeal from dismissal of tbeir complaint on motion for legal insufficiency. Taking tbe complaint as true, as we must, plaintiffs were unlawfully dismissed from tbeir positions in tbe city colleges under tbe Board of Higher Education of tbe City of New York. Tbe dismissals occurred in 1953, following tbe pleading by plaintiffs of tbeir privilege against self incrimination in bearings before a United States Senate Subcommittee. These dismissals were pursuant to tbe provisions of section 903 of tbe New York City Charter.¹ Since then, tbe United States Supreme Court in tbe case of Slochower v. Board of Educ. (350 U. S. 551) has held that tbe statute in its application to another person, a Professor Slochower, similarly situated, constituted a violation of due process and was, therefore, unconstitutional. On tbe remittitur, Professor Slochower was reinstated and received accrued salary less bis earnings during tbe period (Matter of Daniman v. Board of Educ., 2 N Y 2d 719).² On this basis plaintiffs in this action at law seek [666]*666to recover salaries accrued from the time of their dismissals to the commencement of the action.

The first question is whether the dismissals of plaintiffs involved any act of discretion or quasi-judicial determination. If so, plaintiffs are time-barred, because they must first have sought review of the discretionary or quasi-judicial determination in an article 78 proceeding under the-' Civil Practice Act. Such a proceeding must have been brought within four months after the determination had become final and binding (Civ. Prac. Act, § 1286; Matter of Foy v. Brennan, 285 App. Div. 669). Nor may the time be indirectly extended by bringing an action rather than the special proceeding (Colodney v. New York Coffee & Sugar Exch., 4 A D 2d 137, affd. 4 N Y 2d 698). Such an action, of course, would have to be in equity because until the discretionary or quasi-judicial determination had been upset, there would be no legal right to recover the accrued salary. (Barry v. Mulrain, 1 A D 2d 623.) If the dismissals, however, involved neither an act of discretion nor a quasi-judicial determination, then remedy by action or proceeding may be obtained within four months after demand on defendant to perform the duty specifically enjoined on it by law, namely, to reinstate plaintiffs in their positions or to pay them their salaries (Civ. Prac. Act, § 1286; Matter of Foy v. Brennan, 285 App. Div. 669, supra).

The dismissals were automatic, involving neither an act of discretion nor a quasi-judicial determination. Section 903 of the charter provides that a city employee’s employment shall, in the event he claims the privilege against self incrimination in the circumstances described, terminate and the employment be vacant. The statute provides for a self-executing forfeiture. No further action is required. No further action was taken by defendant except to dismiss in response to the clear and unqualified mandate of the statute. Thus, too, no hearings were required and none were held; no charges were placed; nor any findings made, as would have been required had these employees been removed for cause under provisions of the Education Law. In this very context, the Court of Appeals has said that the claiming of the privilege to which section 903 is applicable is equivalent to a resignation (Matter of Daniman v. Board of Educ., 306 N. Y. 532, 538).³

The next question is whether plaintiffs must first have obtained reinstatement to their positions from which they had been [667]*667illegally dismissed, before they may seek to recover accrued salary, A parallel question is whether an article 78 proceeding is the exclusive remedy for plaintiffs, either to effect reinstatement or to recover accrued salary, or at least to effect reinstatement as a condition precedent to an action for recovery of accrued salary,

Gases of not so long ago asserted not only that a municipal employee illegally removed must promptly obtain reinstatement by mandamus (now embraced in an article 78 proceeding), but also that reinstatement is a condition precedent to recovery of accrued salary to which he was entitled (Matter of Barmonde v. Kaplan, 266 N. Y. 214; Thoma v. City of New York, 263 N. Y. 402).

More recently, however, the Court of Appeals has held that a proceeding in the nature of mandamus is not the exclusive remedy for one illegally removed but that an action at law may lie to recover accrued salary so long as only a clear legal right was involved, uncomplicated by an act o,f administrative discretion or quasi-judicial determination (Toscano v. McGoldrick, 300 N. Y. 156), Thus, too, this court has since stated, rather broadly, that the Toscano ease was authority for the proposition ‘ • that an action at law is available for an illegal ouster from a civil service position”, provided no act of discretion was involved (Barry v. Midrain, 1 A D 2d 623, 625, supra).

Moreover, the Toscano case expressly distinguished the Thoma and Barmonde cases, pointing out that in each of those cases the plaintiff and petitioner, respectively, was not entitled to the accrued salary claimed on any theory or in any proceeding, and, therefore, the cases were not authority for the contention that a proceeding in the nature of mandamus is the exclusive remedy to recover legal pay.

It is true that in the Toscano case the employee had been voluntarily reinstated and in that connection waived all his rights to accrued salary. But this was not an operative fact for the court pointed out that the municipality had done only what it was bound to do, and the waiver was an illegal coercion. Thus, the case may be properly interpreted to stand for the proposition that Toscano would be regarded as having all the rights of reinstatement because he was clearly entitled to reinstatement, and the municipality in effecting his reinstatement was powerless to support a condition of waiving* accrued salary. If Toscano had refused to waive his accrued salary, had stood on his legal rights, and as a consequence had not been reinstated, there, is no doubt that his widow would have prevailed, nevertheless, in recovering the accrued salary. Otherwise it would mean [668]*668that the municipality could have profited from practicing what the court described as an illegal coercion. The voluntary reinstatement, moreover, was not posited by the court as a basis for sustaining the action at law, which, if that had been done, would have brought the case more in line with the ratio decidendi in the Thoma and Barmonde cases. Instead, the court rested its holding on the right of the employee to alternative remedies, rejected the statements in the Thoma and Barmonde cases, and emphasized the discretionary (and therefore uncertain) character of a proceeding in the nature of mandamus (as it had many years before, in Steinson v. Board of Educ., 165 N. Y. 431).

Taking, then, the complaint as true, it should not have been dismissed. This does not mean that the Slochower case (350 U. S. 551, supra,) necessarily covers the dismissals of plaintiffs in this action. At this point the allegations of the complaint are taken as true. Plaintiffs will eventually have to establish the facts asserted in their pleading, and sustain their right either under the Slochower case, or otherwise. So, too, there are other matters of defense which may eventually serve to defeat or diminish plaintiffs ’ recovery, but with such possible issues there is no present concern.

Accordingly, the order granting defendant’s motion to dismiss the complaint and the judgment entered thereon should be reversed, on the law, and the motion denied, with costs to plaintiffs-appellants.

¹
“ § 003. Failure to testify.— If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, hoard or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.”

²
It also appears that plaintiffs entered into a stipulation with defendant some years ago in which it was agreed that the parties would he bound by the final order to be entered in a proceeding brought by a number of others, including Professor Slochower. Special Term, Kings County, has held that plaintiffs were not entitled under the stipulation to benefit from the eventually successful results obtained by Professor Slochower and dismissed their application (Matter of Shlakman v. Board of Educ., 5 Misc 2d 901). There has been no appeal from this determination.

³
Reversed, in part, sub nom. Slochower v. Board of Educ., 350 U. S. 551, supra.

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5 A.D.2d 664, 174 N.Y.S.2d 511, 1958 N.Y. App. Div. LEXIS 5713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-board-of-higher-education-nyappdiv-1958.

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