Lester v. Board of Education

119 N.Y.S. 887

• Court: New York Supreme Court
• Decided: November 30, 1909
• Status: Published

Opinion

CARR, J.

Since the revision of the Greater New York charter in 1901, it has been twice by Appellate department that the fixation of the salaries of janitors of public schools in the city of New York must be made by the board of aldermen, under section 56 of the Revised Charter. People ex rel. Ajas v. Board of Education, 104 App. Div. 162, 93 N. Y. Supp. 300; Farrell v. Board of Education, 113 App. Div. 405, 98 N. Y. Supp. 1046. As the complaint alleges only a fixation of the plaintiff’s salary by the defendant, the board of education, it fails to allege an essential requirement as to a legal fixation, and is therefore demurrable on that ground.

The decision of the Court of Appeals in Gunnison v. Board of Education, 176 N. Y. 11, 68 N. E. 106, is not in conflict. There the court had before it a different question, as the cause of action in that case arose prior to 1901, and was based upon statutory provisions, which were not the same as now. Every judicial opinion is limited to facts then in review, and must be construed accordingly. That court cannot be deemed to have had section 56 <?f the Revised Charter in mind, when it passed upon a cause of action which accrued on May 1, 1899, two years before the present enactment..

Demurrer sustained, with leave to amend on payment of taxable costs.