
    Margaret B. Murphy, Appellant, v. The Board of Education of the City of New York, Respondent.
    
      Teacher in a public school in Netw York city — not an officer but an employeee — right of the school authorities to pass a by law directing deductions from salaries for absence — the legislative provision for a teachers’ retirement fund is a ratification thereof.
    
    The position of a teacher of a public school in the city of New York is that of an employee, and not that of an officer. His employment is contractual, and his right to compensation depends upon the contract of employment.
    The board of education of the city of New York and the school boards of the various boroughs had power, under sections 1070, 1090, 1091, 1100 and 1103 of the city charter (Laws of 1897, chap. 378), to adopt by-laws providing that a certain deduction should be made from a teacher’s salary for each day that he was absent without leave, even though such absence was caused by illness.
    The amendment made to section 1083 of the Greater New York charter by chapter 186 of the Laws of 1901, in which the Legislature made provision for a teachers’ retirement fund, to consist, in part, of “ all money, pay, compensation, or salary, or any part thereof, forfeited, deducted or withheld from any teacher or teachers for and on account of absence from duty for any cause,” constituted a legislative ratification of the by-law in question.
    Appeal by the plaintiff, Margaret B. Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of December, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the New York Trial Term, dismissing the plaintiff’s complaint upon the merits.
    
      Frank M. Hardenbrook, for the appellant.
    
      Terence Farley, for the respondent.
   Ingraham, J.:

The plaintiff was a school teacher in the city of New York and had been such for a period of about twenty-five years. On March 24, 1901, she absented herself from the school in which she was employed and did not report until September 16, 1901. During that time she was ill and unable to work. On October 4,1901, she made an application to be excused with pay.under tl\e provisions of the by-laws of the school board for the boroughs of Manhattan and the Bronx, which application was refused. She was entitled to an annual salary of $1,020, but the defendant deducted from the salary-due her for the months that she was absent without leave the sum of $192.68, and that sum she seeks to recover in this action.

The right of the defendant to make such deduction is to -be determined by the charter of 1897 (Laws of 1897, chap. 378) as that charter was in • force during the entire period during which these deductions were made. It is now settled that the position of a teacher in a school is that of an employee and not that of an officer ; that his employment is contractual and his right to compensation depends upon the contract of employment. (Stienson v. Board of Education of N. Y., 165 N. Y. 431.) By section 1103 of the charter the school boards in the respective boroughs are given power to appoint all teachers and other members of the teaching staff on the nomination of the board of borough superintendents; and by section 1091 each school board is given power to adopt by-laws fixing the salaries of all members of the supervising and teaching staff, such salaries to be regulated by merit, by the grade of class taught, by the length of service, by experience in teaching of the incumbent in charge, or by such a combination of these considerations as the school board may deem proper. Said salaries need not be uniform throughout any one borough, but the salaries fixed and established and payable on January 1, 1898, in the different schools of the territory consolidated shall be and remain the salaries in the schools of the several boroughs thereby constituted until the same shall be changed or modified. By section 1070 the board of education, was given power to enact by-laws, rules and regulations for the proper execution of all duties devolved upon the board, for regulating the manner of making disbursements from any of the funds apportioned to any borough- for school purposes, for the proper execution of . all powers vested in it by law, and for the promotion of the welfare and best interests of the public schools and public school system of the city in the matters committed to its care. Section 1100 provides that the school board in and for its own borough or boroughs, and subject to the by-laws of the board of education, shall, by its by-law, provide for the payment of the salaries of all principals and teachers of the various schools under its charge, and for all disbursements chargeable to -the general school fund apportioned to it for educational purposes therein. By section 1090 each school board is given power to adopt by-laws regulating the exercise of all powers and duties vested in it by law, the said school board to have power to provide by such by-laws for the government and management of the schools in the borough; for defining the duties and regulating the exercise of the powers of its members and committees and of all school officers and the borough superintendent and associate superintendents, principals or teachers; for the regulation of all disbursements from the general school fund in the borough, and for the promotion and welfare and best interests of all matters committed to it concerning the public schools and public school system of the city in said borough.

The broad power thus given to the school boards and the board of education to appoint all teachers and to fix their salaries, and to make by-laws for the regulation of all disbursements of the general school fund in the borough, would give the school board power to reduce the salary of any teacher, either by an actual reduction, in the amount paid, or by providing that the salary of a teacher shall be paid only fbr the period during which the teacher actually performed service. A teacher being an employee, and his relation to the appointing power contractual, nothing stands in the way of a revisal of his compensation by the authorities having power to fix the salary to be paid to the teacher at any time. The salary of an employee not being an incident to the office, but payment for services rendered, there would certainly be nothing illegal in a provision «hanging the condition under which the salary is paid, so .that it is payable only for the period for which the services are actually rendered. The school board, therefore, has the power to reduce the salary of a teacher by providing that he is to receive no compensation for. the days on which he is absent without leave. It is undoubtedly true" that until the salary is reduced or the employee is •discharged he is entitled to receive the compensation agreed upon. The condition of employment, however, does not prevent a change in the amount of salary to be paid, or the imposition of a condition that a deduction should be made from the teacher’s salary for a period during which he absents himself from the performance of his duty without leave. By an amendment to section 1083 of the charter of the city of New York (Laws of 1901, chap. 186), which took effect on the 25th day. of March, 1901, about the time that the plaintiff first absented herself, provision is made for a school teachers’ retirement fund, which is constituted from several sources, one of which being “ all money, pay, compensation, or salary, or any part thereof, forfeited, deducted or withheld from any teacher or teachers for and on account of absence from dutyfof any cause,” the Legislature thus clearly contemplating that provision could be made for the deduction of teachers’ pay for absence from duty. In pursuance of the power thus granted, the board of education adopted a by-law (By-Laws of the Board of' Education, §-27) making provision for a teachers’ retirement fund, and therein provided that All money, compensation or salary, or any part thereof, forfeited, deducted or withheld from any teacher or teachers, and not remitted to such teacher or- teachers in accordance with the provisions of the by-laws of the Borough School Boards applicable thereto, shall constitute a part of the Teachers’ Retirement Fund.” . By subdivision 4 of section 74 of the by-laws it is provided: One-thirtieth of a month’s salary shall be deducted for every day of absence on the. part of a principal, supervisor or teacher unless such principal, supervisor or teacher is excused for adequate cause in accordance with rules made by the School Board of the Borough in which such teacher is employed.” The by-laws of the school board for the boroughs of Manhattan and the Bronx made it the duty of every teacher absent from duty to report promptly in writing to the principal of the school the cause of such absence, and to state its probable duration, and it was made the duty of the principal, when a teacher is absent for a period longer than three school days, to report the facts without delay to the borough superintendent. Provision is then made by which a teacher’s absence may be excused on' application to the school board. (ByLaws of the School Board, § 44.) By section 28 of said by-laws provision is made for a deduction of pay or compensation or salary in case of absence of the teacher without leave. It is there provided : “ The Secretary of the Board shall certify monthly to the Board of Education the amount so deducted during the preceding month, and in so certifying thé following rule shall apply: From the amount earnable in any month by any teacher, deduct the amount paid for actual service, the difference between these amounts (less those amounts remitted jn accordance with the provisions of these by-laws) shall be deemed applicable to the Teachers’ Retirement Fund, said calculation to be made on the basis that one day shall be deemed one-thirtieth of a month.”

There can be no doubt, I think, but that the adoption of these by-laws was a valid exercise of the power vested in the board of education and the borough school boards and justified the deduction from the amount of salary payable to a teacher of the amount specified for each day’s absence without leave. The by-laws to which reference is made were in force at the time of the passage of the amendment of 1901 to section 1083 of the charter, and that clearly contemplated a deduction from teachers’salaries for absence without leave, and a disposition of the amount of such deduction by applying it to a fund which was to be paid to teachers who had been disabled while in service; and was a ratification of the by-law of the board of education which provided for a deduction from the teachers’ salaries for absence without leave.

It would seem to follow, therefore, that the action of the board of education in making these deductions complained of was legal, and that the plaintiff was not entitled to recover for the period during which she performed no service.

The judgment appealed from should, therefore, be affirmed, with costs.

Vah Brunt, P. J., O’Brien and Hatch, JJ., concurred; Patterson, J., concurred in result.

Judgment affirmed, with costs.  