Timmerman v. Board of Education

274 A.D. 934, 83 N.Y.S.2d 501, 1948 N.Y. App. Div. LEXIS 4160

Opinion

Judgment awarding respondent, a school teacher employed by appellant, additional compensation based upon annual salary increments accruing pursuant to filed salary schedule during the period that he was absent from that employment in the performance of ordered military service, modified on the law by striking therefrom the provision for interest computed upon the monthly portions of the award as they became due, and inserting in place thereof a provision allowing interest upon that amount at 4% per annum from January 20, 1947, and by correcting the computation of interest in the judgment accordingly. As so modified, the judgment is unanimously affirmed, without costs. (Smith v. Board of Education of City of N. Y., 208 N. Y. 84; McGarry Contr. Co. v. Board of Education of City of N. Y., 264 App. Div. 725.) In our opinion respondent, a member of the Officers Reserve Corps, upon being ordered into the military service was entitled under subdivision 1 of section 245 of the Military Law, and subdivision 1 of section 888 of the Education Law, as it existed prior to revision by chapter 820 of the Laws of 1947, to the admeasurement of the excess of his civilian compensation over that received in military service based upon the salary and increments accruing under the salary schedule during his absence in military service. (Silverstein v. Board of Education of City of N. Y., 190 Misc. 588, affd. 190 Misc. 990, affd. 273 App. Div. 990, motion for leave to appeal denied 274 App. Div. 763.) Present — Nolan, P. J., Johnston, Adel, Sneed and Wenzel, JJ.