
    James J. Egan, Respondent, v. The Board of Education of the City of New York, Appellant.
    (Supreme Court, Appellate Term,
    February, 1911.)
    Common schools — Officers — Delegation of powers of trustees—As not impairing powers of board.
    Municipal corporations: Interpretation and effect of ordinances — Interpretation: Officers and agents — Officers and employees or agents other than mayor and common council — Resignation, removal, discharge and suspension — Investigation of charges and proceedings to remove — Review on certiorari.
    Upon a trial of a janitor of a public school in the city of New York upon charges of a violation of a rule of the board of education^ its determination approving the action of a committee thereof adjudging the janitor guilty and imposing a fine of seventy-six days’ pay, the amount of which was withheld from his salary, is a judgment finally determining the questions involved and not subject to collateral attack in an action by him to recover the amount of the fine so withheld.
    The board of education, when it provided under section 1100 of the Greater New York charter for action by one of its committees, intended merely to avoid the consideration of charges for offenses punishable with not more than five days’ pay, as provided by section 25(5) of its by-laws, and not to divest itself of the power conferred by the statute creating it and which was exercised upon the trial of plaintiff.
    If plaintiff had any valid grievance to redress, the proper and exclusive remedy was a review by writ of certiorari of the proceedings of the board of education.
    Appeal by the defendant from a judgment of the Municipal Oourt of the city of Eew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff.
    
      Archibald R. Watson (Theodore Connoly and Charles McIntyre, of counsel), for appellant.
    Mathan B. Ghadsey, for respondent.
   Delany, J.

The facts in this case were stipulated. Judgment rendered for plaintiff and defendant appeals.

The plaintiff, a janitor in a public school of the city of Mew York, brought this action in the Municipal Court to recover $347, the amount of a fine imposed upon him by the defendant and which was withheld from his salary after a trial had pursuant to the provisions of the Greater Mew York charter. This forfeiture of salary was based upon a finding by the board of education that the plaintiff had been guilty of an infraction of a rule of the department. When charges were preferred against the plaintiff, he was suspended “ pending trial ” and his fine was measured by seventy-six days’ pay, being equal to the number of days of his suspension before the final determination of his trial.

The case is undoubtedly one where the proper and exclusive remedy, if there be any valid grievance to redress, is by review of the proceedings had before the board of education by means of a writ of certiorari. The proceedings below were without warrant of law and constituted a collateral attack on the determination of the board.

Section 1400 of the Greater Mew York charter contains the grant of certain judicial powers necessary for a disciplinary tribunal and confers jurisdiction on such’tribunal to hear and determine charges against certain employees of the board who are by the same statute entitled to a trial. The section reads as follows: “ The board of education may investigate, of its own motion, or otherwise, either in the board or by a committee of its own body, any subject of which it has cognizance or over which it has legal control, including the conduct of any of its members or employees or those of any local school board; and for the purpose of such investigation, such board or its president, or committee and its" chairman, shall have and may exercise all the powers which the board of education has or may exercise in the case of a trial under section one thousand and ninety-three of this act. Any 'action or determination of a committee ■appointed under the pro-visions of this -section shall be subject to approval or reversal by the board which may also modify the determination of the committee in such way as the board shall -deem proper and just, and the judgment of the board thereon shall be -final.”

The board is likewise empowered to make rales for the conduct and -duties of these -employees. The charter (§ 1068) reads: “ The board of education shall have power * * * to enact by-laws, rules and regulations for the proper execution of all duties devolved upon the board, its members and committees and upon the several local school boards; for the transaction of all business pertaining to the same; for defining the duties of the city superintendent of schools, the superintendent of school buildings, the superintendent of school supplies, of its auditor or auditors, its clerks and subordinates; "x" * * for the proper execution of all powers vested in it by law -and for the promotion of the best interests of the public schools and public school system of the city in the matters committed to its care. •35- -X- -X }) And all proper by-laws have the force of law.

'Section 10-9S provides for the trial of teachers and principals and prescribes the penalties which may be imposed upon one found guilty. “ 'Such penalty or punishment shall consist of a fine, suspension for .a fixed time without pay or dismissal.”

A janitor is an employee referred to in section 1100 of the charter, -and the penalties prescribed in section 1093 are applicable to him. Farrell v. Board of Education, 67 Misc. Rep. 187.

Before the tribunal above mentioned this plaintiff' was brought on charges. He was tried and found guilty and the ■fine was imposed upon him. . The imposition of this penalty was approved by the board and its judgment is final. Greater N. Y. Charter, § 1100.- Here is more than sufficient to establish the jurisdiction of the board of education to- try and ■determine the charge against plaintiff of an infraction of the rule. Having jurisdiction of the subject-matter and the party, its determination is a judgment finally determining the question involved, and it cannot be collaterally attacked. Fisher v. Hepburn, 48 N. Y. 41; Herring v. New York, L. E. & W. R., 105 id. 340, 372; Dobson v. Pearce, 12 id. 156.

If any prerogatives were unlawfully assumed by the 'board, any abuse of authority indulged in, or any substantial injustice done, the Appellate Division on review could rectify it. People ex rel. Citizens’ L. Co. v. Feitner, 81 App. Div. 118; People ex rel. Coyle v. Martin, 142 N. Y. 352.

Much of the contention brought before us was based on an alleged limitation on the power of the board to fine a janitor because of a by-law entitled: “ Committee on Care of Buildings. S'ec. 25. * * * 5. Whenever it shall be charged that any janitor has violated the by-laws or the rules or regulations applicable to janitors, said Committee may require such janitor to appear before it, and if, after a hearing, •the Committee shall decide that such by-law,' rule or regulation has been violated, it may impose a fine not exceeding five days’ salary of such janitor. In case of a serious delinquency on the part of a janitor, the determination of the Committee shall be reported to the Board, which may approve or disapprove the same.”

But it seems plain that, when the board availed itself of the provision contained in section 1100 of acting by means of one of its committees, it merely intended to distribute the work and to avoid the consideration of charges for trifling offenses punishable with not more than a fine of five days’ pay. It reserved charges for more serious infractions of rules for itself. This does not mean that the -board did or could divest itself of the power conferred by the statute creating it. It was this power which was exercised on the trial of the plaintiff.

There are other questions of great variety raised by the respondent in his brief which, were they presented to a court reviewing the action of the board of education on a writ of certiorari, might be discussed; but for the decision of this appeal it is sufficient that it appear that the board of educaticm bad jurisdiction of the subject-matter of the trial referred to, and then our course is plain.

The court below was without power to entertain this case which was a collateral attack on the judicial determination of the board of education. Plaintiff’s sole remedy was by writ of certiorari.

Judgment reversed and complaint dismissed, with costs to the appellant in this court and in the court below.

Hendrick and Lehman, JJ., concur.

Judgment reversed.  