
    Frances E. Moore, Respondent, v. The Board of Education of the City of New York, Appellant.
    First Department,
    November 22, 1907.
    Municipal corporations— salary and pension of school teacher, city of New York— action at law to recover balance due — acceptance of less sum not waiver of right to statutory compensation.
    Section 1117 of the Greater New York charter, providing-that teachers in the public school system of any part of the city shall • continue to' hold' their respective positions and to be entitled to such compensation as is now or may be hereafter provided, etc., operates .permanently to protect teachers in the ■ tenure of their positions whether appointed before or after the passage of the act, unless discharged or reduced to a lower position for cause.
    A female teacher in the former county of Richmond, who, prior to- the incorporation of that county into -the' city of New York, had been.employed continuously for eight years as a teacher of a girls’ graduating class, and continued to teach such class for three years after the creation of the greater city, is entitled to receive a salary of not less than. $1,410, under chapter 751 of the Law's of 1900, and also to a pension at the rate of half that sum on her retirement, even-though prior to her retirement she accepted and receipted for a less sum.
    Although the- class of such teacher before her retirement was reconstructed so - that' in addition' to girls- about to graduate it included "qthérs not so far .advanced, she continues to be a teacher of’a gills’ graduating class within- the meaning of the statute, and entitled to the salary and pension prescribed.
    Such teacher, never, having been discharged or reduced'in. rank,.may, after.her retirement, maintain an action at law against the board of education to recover the difference between the salary and pension actually paid and .that t.o; which ’ she- was'-entitled under chapter 751 of the Laws of. 1900 without resorting to mandamus to óompel her reinstatement. ’ ’ ’
    
      The right of such teacher to the statutory compensation and pension under chapter 751 of the Laws of 1900 does-not rest upon contract, and hence, by accepting and receipting for a less salary and pension, she does not waive her statutory right-to the higher rate.
    LtqRAHÁM:, J., dissented. .
    Appeal by the defendant, The Board of Education of the City of New York, from an order of the Appellate Term of the Supreme Court, made on the 16th day of May, 1907, and entered in the office ■of the clerk of the county of New York, affirming a judgment of the Municipal Court Of the city of New York, borough of Manhattan, in favor of the plaintiff, and also (as- stated in the. notice of appéal) from a judgment entered upon said order of affirmance.
    
      Theodore Connoly, for the appellant.
    
      John E. O'Brien, for the respondent.
   Scott, J.:

The defendant appeals from a determination of the Appellate Term affirming a -judgment in plaintiff’s favor in the Municipal Court. '

The plaintiff had been a teacher in the public schools of the county, now. borough, of Bichmond, for some twenty-nine years prior to the incorporation of that county into the city of New York on January 1,-1898, and. at that date she had been employed continuously for eight years as teacher of the girls’ graduating class in Public School Ho. 18, that being the highest grade or class in the school. Prior to consolidation there was in the county of Bichmond no particular salary attached to any particular grade or position, the matter of salary being one of yearly contract, between each teacher and the local school authorities. Section 1086 of the Greater New York charter of 1897, which went into effect on January 1, 1898 (Laws of 1897, chap. 378), provided that all yearly school contracts, such as that which the plaintiff held, should be continued until the expiration of the yearly term named therein, and section .1091 continued the salaries as fixed and paid at the date of consolidation until new schedules should be adopted by the borough boards. Section 1117 provided that “ all superintendents * * * teachers * * * in the public school system of any part of the city of New York, as constituted by this act, shall continue to hold their respective positions, and to be entitled to such compensar tion as is now provided or may hereafter be provided by the various school boards, subject, to the limitations of this act, and to reassignment or to removal for cause as may be provided by law.”

After consolidation had been effected plaintiff continued to teach, as'shé liad done before, a class which was exclusively a girls’ gradtiating class, and the highest class in the school until June 1,:1898. After that date her class was composed in part of girls about to graduate, known as pupils of the eighth grade, arid in part of pupil’s of a lower or seventh grade. This change in the composition of the class appears to have been the result of some rearrangement of classes the nature of which is not explained. It does not apjpear that plaintiff was .ever disciplined or “reassigned.” within the meaning of that word as used in section 1117, and it is clear that down to the date of her retirement the class she taught wás, in' part at least, a girls’ graduating class.

In 1900 the Legislature enacted the so-palled Davis Act (Laws of 1900, chap. 751), which went into effect on May 3, 1900. That act dealt in great detail with the subject of the salaries of teachers and other employees of the board of. education, and by its' 4th section (amending section 1091 of the charter of 1897) provided as follows: “The board of education shall have power to adopt-by-laws fixing the salaries of the borough and associate superintendents and all members., of the supervising and the teaching staff * * * and no female teacher of a girls’ graduating class * ■ '* * shall after ten years of service in said schools receive less than fourteen hundred and forty dollars per annum.” Pursuant, to this act the board of' education adopted a by-law which provided that: “Female teachers-in the elementary schools appointed to .classes in the 8 B Grade shall receive salaries in. accordance .with the following schedule, viz.: *

* * *
Tears.
*** $
7...l..... 1,440.”

It appears to be agreed that “girls’ graduating classes”, are included within the phrase “ classes in the 8 B Grade.”

At the time the so-called Davis Act went into effect plaintiff was receiving a salary of $1,320 per annum, and it is conceded that she continued to he paid, and to have accepted salary at that rate down to the time of her retirement on February 1,1901, an'd to have been paid and accepted a pension at the rate of half that sum, or $660 per annum, since the date of her retirement. She now claims that she w'as entitled to receive from the date of the passage, of the Davis Act, to the date of her retirement, salary at the rate of $1,440 per annum and a pension since she retired at the rate of half that salary, or $720 per annum. Her judgment is for the difference between what she has received and what she now claims that she was entitled to receive. It is clear beyond contradiction that at the time the Greater New York charter went .into effect the plaintiff held a position in the educational system in the county of Richmond as teacher of a girls’ graduating class,, being the highest grade of class in the elementary- schools of that county. Such is the fact, and it is entirely unimportant that the place she held was not designated in terms as a position ” in any act or by-law. Consolidation found her so occupied and holding such a position, or place. Section 1117 of the charter then became operative. The object and effect of that section has been declared by the highest authority. It operated to permanently protect teachers, as well those employed before the .passage of the act as those appointed after-wards, in the tenure of their positions unless removed or reassigned for cáuse and in the manner provided by law. (People ex rel. Callahan v. Board of Education, 174 N. Y. 169, 174; Bogert v. Board of Education, 106 App. Div. 56.) The effect of that section, therefore, sc far as concerned this plaintiff, was to permanently secure her tenure of the position in which the charter found her, .to •wit, that of a teacher of a girls’ graduating class. Except for cause the defendant had no power after January 1, 1898, to reduce her to a lower position, and we do not consider that they should be held to have done so, or to have attempted to-do so merely because her class was so reconstituted that in addition to teaching girls about to graduate she was called upon to teach others not so far advanced, By fair intendment, therefore, as well as by operation of law, sbe continued to be a teacher of a girls’ graduating class, and was such on May 3, 1900, when chapter 751 of the Laws of 1900 went into effect j-and by the terms of .that act she at once became' entitled to receive the salary which she now claims. Since she had never been removed or. reduced in rank she is under no necessity to proceed by . mandamus • for reinstatement. The' defendant insists' that by accepting and receipting for salary and pension- at the lower rate the plaintiff has waived 'the right to compensation at the higher rate. . If her right to- compensation rested upon' contract there would be force in this, contention. But it does not. Her right to receive both the salary and the pension, which she now claims was definitely, fixed by' statute, and when the compensation of a public employee- is fixed by statute,, it cannot be reduced.by the-superior. officer under whom- he. or she is employed, and the fact that the employee for a time- .accepts the reduced compensation does not estop him or her from subsequently claiming the residue. (Kehn v. State of New York, 93 N. Y. 291; McCunney v. City of New York, 40 App.Div. 482; Clark v. State of New York, 142 N. Y. 101.)

The determination of the Appellate Term must be affirmed, with costs. -

; Patterson,P. J., McLaughlin and Houghton, J J., concurred Ingraham, J., dissented. -

- Determination affirmed, with costs. 
      
       Amd. by Laws of 1899, chap. 644.— [Rep.
     