Sheehan v. Board of Education

120 A.D. 557, 104 N.Y.S. 1002, 1907 N.Y. App. Div. LEXIS 1250

Opinion

Miller, J.:

In June, 1894, the' appellant was appointed principal of Public School Ho. 2, Woodhaven, county of Queens, and continuously held that position until August, 1898, when she was reassigned to the position of teacher in another school. At the time of such reassignment her salary as principal was $750, and the salary of the position to which she was reassigned as teacher, was $1,000. At that time there was no statutory provision fixing the minimum salaries to be" paid teachers, and it was not necessary that salaries be uniform. (See Laws of 1897, chap. 378, § 1091.) Said section was amended by chapter 417 of the Laws of 1899, and by chapter 751 of the Laws of 1900, so as to fix the minimum of "salaries to be paid. A minimum of $1,400 was provided by tlie act of 1899 for the position of vice- principal, head, of department, or first assistant, and provision was. made for an annual increase of $250 for women principals, and, for a minimum of $2,500' after ten years of service. After the passage of said act of 1899, the plaintiff wrote’ her superintendent a letter referring to said act and demanding recognition as “ head o£ departnient ” and the salary of , $1,40.0 ’ which .said ■ statute. fixed as the minimum for said position. She had previously been assigned to duty as head.of’department and subsequently was recognized as such and paid the; salary provided by statute. Thereafter she continued to draw the salary.attached to tile position occupied by her, and regularly signed payrolls which contained at the top of each pagó a receipt in full for services rendered during the period mentioned.1 In January, 19.06, this action was brought to recover the. difference between ’ the, salary actually received and the salary to which she would have been entitled as principal pursuant to chapter 751'of the Laws of 1900.

Footnotes

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The wisdom or unwisdom of subjecting reassignments” to the, same restrictions as “ removals ” is not involved, for the Legislature has seen fit to' provide that “ reassigmnents ” and ^ removals ” can-only' be made for the causes and in the manner prescribed. (People ex rel. Callahan v. Board of Education, 174 N. Y. 169.) We must start with the proposition, then, that the plaintiff had the right to insist on the retention of her position' as principal, and the only question' involved in’ this appeal is whether she has waived that right.. .We think the learned 'trial justice correctly held that she ' had. The appellant insists that that question could not be disposed ■ of as a question of law. It will not be profitable to discuss the, many authorities cited, as no case precisely like this is referred to, and the general proposition that a party may waive any right that he has is undisputed. Where different inferences are permissible^ the question is doubtless one of fact, and many of the cases cited-so treat it, but where the facts are undisputed and the acts of the ' parties are so unequivocal as to. warrant but- one inference, the question, is-clearly one of law. The. plaintiff says, that at the timé of her reassignment she protested to her superintendent that she should be retained as principal,, but she .accepted the ne,w position and the increased salary ; and,when"the statute was subsequently passed fixing the minimum' salaries to be, paid teachers she made claim, not to the salary provided for principals, but to that provided for heads of department,' and aslced to be recognized as a -head of department. That request was granted, the salary demanded was paid, receipts in full for services were periodically signed, and seven and one-half years after the alleged wrongful reassignment ■ she first made claim to the salary of the position from which she asserts having been wrongfully removed. Under such circumstances a jury should not be permitted to guess that the plaintiff accepted compliance with her demands without consenting thereto. Whatever inferences might be drawn from the other circumstances disclosed, her demand for recognition as a head of department and for the salary attached to that position, coupled with her accept-, anee of said salary granted pursuant to such demand, and her written acknowledgments of pay in full for services rendered, must be deemed in law a waiver of any right to claim a-salary attaching to some other position. In' my judgment the .facts in this case are stronger for the defendant than in the case of Ryan v. City of New York (177 N. Y. 271), and that case was disposed of as a question of law.

I advise affirmance of the judgment.

Present — Hirschbeeg-, P. J., Jenks, G-aynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs.

See Laws of 1901, chap. 466, § 1091. — [Rep,