
    Alfred Hawes, Respondent, v. The Board of Education of the City of New York, Appellant.
    First Department,
    January 22, 1914.
    Pleading—complaint — action by municipal employee against city of Hew York to recover back salary — complaint not stating cause of action.
    Although section 66 of the revised Greater Hew York charter (Laws of 1901, chap. 466) provides that “ all salaries as fixed on the first day of January, 1902, shall continue in force until fixed by the board of aider-men as in this section provided,” a municipal employee, suing for back salary, cannot recover on a complaint which merely alleges that he “received from the defendant as compensation for his services” a certain annual sum. This, because in order to bring himself within the terms of the charter he must allege that upon and prior to the date aforesaid his salary had been legally fixed. A mere allegation that he had received a certain compensation is not equivalent to an allegation that he was entitled to receive it.
    McLaughlin, J., dissented, with memorandum.
    
      Appeal by the defendant, The Board of Education of the City of Hew York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 19 th day of May, 1913, overruling a demurrer to the first and second causes of action set forth in the complaint.
    
      Charles McIntyre, for the appellant.
    
      John T. Little, for the respondent.
   Scott, J.:

The plaintiff sues for back salary from January 1, 1907, at the rate of $3,432 per annum, less such amounts as have been paid to and accepted by him since that time. His claim seems to be that on and prior to January 1, 1907, his salary was legally fixed at the sum mentioned and that it has never been legally reduced. He alleges that section 56 of the revised Greater Hew York charter (Laws of 1901, chap. 466) provides that “ all salaries as fixed on the first day of January, nineteen hundred and two, shall continue in force until fixed by the board of aldermen as in this section provided.” He seeks to bring himself within the terms of this act by further alleging that “from the date of his appointment to and including January, 1902, and subsequent thereto (covering an entire period of more than seven years) the plaintiff received from the defendant as compensation for his services as such janitor-engineer the annual sum of $3,432.”

The point of the demurrer is that in order to bring himself within the terms of the charter the plaintiff should have alleged that upon and prior to January 1, 1902, his salary had been legally fixed at the rate stated and that an allegation that he had received a certain compensation is not equivalent to alleging that he was entitled to receive it. This point is well taken. The purpose of the statute was not to perpetuate anything except salaries which had then been “ fixed,” by which, of course, is meant legally fixed. Unless, therefore, the compensation of which plaintiff was in receipt on January 1, 1902, had been legally fixed, it was not perpetuated by the charter provisions; if it had been so fixed, it would be quite as easy to so allege as it is to use the form of allegation adopted in the complaint.

It is said that the fact that the sum mentioned had been paid for seven years before 1902 is presumptive evidence that plaintiff’s salary had been theretofore legally fixed at that figure. Even if that be true, which we do not decide, it would not justify the complaint. The office of a complaint is to allege the facts, not the evidence from which the existence of a fact may be deduced, and to allege facts which merely lead to the presumption of the ultimate fact upon which plaintiff’s right rests is to plead evidence and not facts. The fact which defendant wishes to put in issue and is entitled to put in issue is the legal fixation of plaintiff’s salary prior to January 1, 1902. Under the complaint as it stands that issue is not tendered and cannot be raised by a denial. If the compensation plaintiff says he was receiving prior to 1902 was his legally fixed salary, he can easily say so. If it was not, he is not entitled to recover. In short, in his present complaint plaintiff does not bring himself within the terms of the statute upon which he relies.

The interlocutory judgment must be reversed, with costs and disbursements to defendant, and the demurrer sustained, with costs, with leave to plaintiff to serve an amended complaint within twenty days upon payment of all costs.

Ingraham, P. J., Laughlin and Clarke, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I dissent on the ground that from the allegation that the plaintiff had received a certain compensation, it is fairly to be inferred that such compensation had been fixed according to law. The presumption is, in the absence of any evidence to the contrary, that a public official disburses public money only when authorized by law to do so, that is, that he performs only legal acts. The allegation, therefore, in the complaint that the plaintiff received a certain compensation is, in my opinion, equivalent to an allegation that he was entitled to receive the same.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to amend on payment of costs.  