Divisich v. Marshall

Appellate Division of the Supreme Court of New York

Divisich v. Marshall

257 A.D. 294, 13 N.Y.S.2d 935, 1939 N.Y. App. Div. LEXIS 7736

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

DecidedJune 28, 1939

StatusPublished

Cited by2 cases

This text of 257 A.D. 294 (Divisich v. Marshall) 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.

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Divisich v. Marshall, 257 A.D. 294, 13 N.Y.S.2d 935, 1939 N.Y. App. Div. LEXIS 7736 (N.Y. Ct. App. 1939).

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Per Curiam.

Prohibited by subdivision 10 of section 877 of the Education Law from incurring a liability or expense either against funds under its control or against the city in excess of an amount appropriated or available, the board of education of the city of New York of necessity was compelled to adjust its contemplated activities for the coming fiscal year to the total amount appropriated for its use.

We are of opinion that, in the circumstances presented, ample authority existed in the board for abolition of the positions held by the petitioners and others similarly situated, under the provisions of subdivision 2 of section 868 of the Education Law. (People ex rel. Kaufman v. Board of Education, 166 App. Div. 58; Matter of Cusack v. Board of Education, 174, N. Y. 136.) The manner of disbursement of the amounts placed at the disposal of the board rests in their independent judgment and in their discretion lies the determination of how the money appropriated shall best be expended with a view to an efficient system of education. (Matter of Fuhrmann v. Graves, 235 N. Y. 77.)

We do not think that Matter of Rushford v. LaGuardia (280 N. Y. 217) holds to the contrary. There the city alone, without the concurrence of the Board of Justices of the Municipal Court of the city of New York, attempted to reduce salaries of the clerks to the justices, relying upon the provisions of section 68 of the New York City Charter. Here the action complained of was taken by the department which, as already stated, has exclusive discretion in the use of moneys appropriated for its benefit. This department had the right to abolish the positions or reduce salaries when-necessity required. (Thoma v. City of New York, 263 N. Y. 402; Matter of People ex rel. Brett v. McGoldrick, 281 id. 588.)

It follows, therefore, that the orders appealed from should be reversed and the petition dismissed.

[296]*296Martin, P. J., O’Malley, Townley and Untermyer, JJ., concur; Dore, J., dissents.

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Per Curiam.

Prohibited by subdivision 10 of section 877 of the Education Law from incurring a liability or expense either against funds under its control or against the city in excess of an amount appropriated or available, the board of education of the city of New York of necessity was compelled to adjust its contemplated activities for the coming fiscal year to the total amount appropriated for its use.

We are of opinion that, in the circumstances presented, ample authority existed in the board for abolition of the positions held by the petitioners and others similarly situated, under the provisions of subdivision 2 of section 868 of the Education Law. (People ex rel. Kaufman v. Board of Education, 166 App. Div. 58; Matter of Cusack v. Board of Education, 174, N. Y. 136.) The manner of disbursement of the amounts placed at the disposal of the board rests in their independent judgment and in their discretion lies the determination of how the money appropriated shall best be expended with a view to an efficient system of education. (Matter of Fuhrmann v. Graves, 235 N. Y. 77.)

We do not think that Matter of Rushford v. LaGuardia (280 N. Y. 217) holds to the contrary. There the city alone, without the concurrence of the Board of Justices of the Municipal Court of the city of New York, attempted to reduce salaries of the clerks to the justices, relying upon the provisions of section 68 of the New York City Charter. Here the action complained of was taken by the department which, as already stated, has exclusive discretion in the use of moneys appropriated for its benefit. This department had the right to abolish the positions or reduce salaries when-necessity required. (Thoma v. City of New York, 263 N. Y. 402; Matter of People ex rel. Brett v. McGoldrick, 281 id. 588.)

It follows, therefore, that the orders appealed from should be reversed and the petition dismissed.

[296]*296Martin, P. J., O’Malley, Townley and Untermyer, JJ., concur; Dore, J., dissents.

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257 A.D. 294, 13 N.Y.S.2d 935, 1939 N.Y. App. Div. LEXIS 7736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/divisich-v-marshall-nyappdiv-1939.

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