
    The People ex rel. George Steinson, App’lt, v. Board of Education of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June, 26, 1891.)
    
    1. Mandamus—School teacher wrongfully discharged—Salary.
    The by-laws of the board of education of New York city provide that salaries shall be paid on pay rolls, which must have the approval of and be certified by the school trustees and inspectors, and then audited and certified by the board of education and the finance department of New York city, and mandamus will not lie to compel the board to pay the salary of a teacher, alleged to have been wrongfully dismissed, and afterwards reinstated. All that could be commanded would be that his name be put upon the pay-roll in order that his salary might be paid in the regular way.
    2. Same—Remedy at law.
    In such case mandamus will not lie to the board to pay the relator’s salary which accrued after such discharge, as his claim in such case is nothing but a mere common law demand for money due on a contract, and he has an adequate and complete remedy by action.
    Appeal from special term, New York county.
    
      E. M. Hawkes, for app’lt; R. G. Beardslee, for resp’t.
   Patterson, J.

—This is an appeal from an order denying a motion for a peremptory mandamus. The relator had been a teacher in a public school in the city of New York and was removed from his position, but as he claims restored thereto by the state superintendent of instruction. He asks in this proceeding that, the board of education be directed to pay to him a sum, he alleged to be due as salary for a period subsequent to his dismissal, but he did not ask for reinstatement in his place as a teacher. It would be sufficient to dispose of this appeal by referring to the-statutes respecting the powers of the board of education and the method by which under the by-laws of that board enacted pursuant to the statutes, salaries of teachers are to be paid.

They would show that-the application, in the first place, is misdirected as to the object sought to be accomplished. The board of education controls the expenditure of moneys raised for the support of public schools in accordance with the provisions of the consolidation act; but it does not actually disburse moneys forth e payment of salaries of teachers. On the contrary, the by-laws-of the board require that salaries shall be paid on pay rolls, which must have the approval of and be certified by the school trustees, and the school inspectors of the wards and districts in which the schools are situated, and then these pay rolls must be audited and certified by the board of education and the finance department of the city of New York. It would be impossible to grant the writ now applied for under the law, and the regulations referred to. All that could be commanded in a clearly established case, and on the assumption that the relator was entitled to some direction by mandamus, would be that his name be put upon the pay-roll in order that his salary might be paid in the regular and usual way, and whether that application should be made against the trustees and inspectors, is a question not necessary to discuss now.

But there is another and radical objection to the relator’s application. He claims to stand in the attitude of one adjudged by the decision of the state superintendent, entitled to his place as a teacher in the public schools. His right and title he therefore assumes as being unassailable. All he asks for now is a mandamus to compel payment of salary; that is, to collect money on a contract by mandamus. His claim is nothing but a mere common-law demand, and it is quite a novelty to seek to collect a debt by the writ applied for. It is true that this court has decided that, in a proper case, mandamus will not be refused, simply because an action for damages might be. It was held in People ex rel. Livingston v. Taylor, 1 Abb. Pr., N. S., 200, that a mandamus is not to be denied only because a relator may have a remedy by action for damages, but that was a case in which the commissioner of jurors refused to strike from the list of jurors the name of a person who claimed and was entitled to exemption from service. It related only to a specific duty imposed upon a public officer. But here the writ is applied for as process to collect a debt. It amounts to that and nothing less. People ex rel. Green v. Fernando Wood, Mayor, 35 Barb., 653.

The granting of a writ of mandamus is discretionary; a discretion tobe exercised not absolutely or arbitrarily, but in ordinary cases only when it appears that the relator is without any other adequate means to redress a wrong or maintain a right. When he has a remedy by action mandamus will be denied. People ex rel. Tenth National Bank v. Bd. Apportimenr,64 N.Y., 627; People ex rel. Lunney v. Campbell, 72 id., 496. In the case last cited the court remarked that the relator had a clear legal right to sue for all damages he had sustained by reason of the refusal of the defendant as commissioner of public works, to execute and carry out a contract which the relator claimed to be entitled to perform as the lowest bidder for the work; and it proceeded to say: “ Ho rule is better settled by the decisions of the courts than that in such a case mandamus will not lie. People ex rel. Perkins v. Hawkins, 46 N. Y., 9 ; Ex parte Lynch, 2 Hill., 45 ; Ex parte Fireman’s Ins. Co., 6 id., 243; Shipley v. Mechanics’ Bank, 10 Johns. 484; People v. Croton Board, 49 Barb., 259.’’ On the relator’s own statement of his case his right to recover his salary is regarded as settled and without saying whether that claim is maintainable or not, we must consider it for the purposes of this application on the basis upon which he himself has put it. On his own showing he has an adequate and complete remedy by action. The court below was right in the conclusion at which it arrived, and the order must be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.  