
    Lawrence F. Hogan, Appellant, v. Board of Education of the City of New York, Respondent.
    First Department,
    March 11, 1910.
    Municipal corporations — department of education, city of New York — fixing salaries — relative powers of aldermen and board of education.
    Under section 56 of the revised charter of the city of New York, as amended by chapter 435 of the Laws of 1903, and section 1067 of said charter, the power to increase the salary of a statistician in the department of education is vested in the board of aldermen, not in the board of education.
    Under the charter the board of aldermen has power to fix the salaries of all positions in the department of education except those which are expressly put under the jurisdiction of the board of education by sections 66, 1067 and 1091..
    Appeal by the plaintiff, Lawrence F. Hogan, from an order of the Appellate Term of the Supreme Court, made on the 30th' day of November, 1909, and entered in the office of the clerk of the county of New York, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff and sustaining the defendant’s demurrer to the complaint.
    The opinions delivered at the Appellate Term are reported in Hogan v. Board of Education (65 Misc. Rep. 194).
    
      John E. OHrien, for the appellant.
    
      Charles McIntyre, for the respondent.
   Miller, J.:

The plaintiff, a statistician in the department of education of the city of New York, sues to recover the amount of an increase of salary voted him by the board of education, which had accrued prior to the commencement of the action. The sole question to be decided is whether the board of education had the power to increase the plaintiff’s salary.

Section 56 of the revised charter (Laws of 1901, chap. 466, as amd. by Laws of 1902, chap. 435) provides, inter alia: “ It shall be the duty of the board -of aldermen, upon the recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city treasury other than day laborers, and teachers, examiners and members of the supervising staff of the department, of education.”

The nature of the plaintiff’s duties is not' shown except as it may be inferred from the title of the position held by him, but it is undisputed that he is not a day laborer, a teacher, an examiner or a member of the supervising staff. It has twice been decided by this court in the Second Department that said .section 56 applies to the positions in the department of education not expressly excluded. (People ex rel. Ajas v. Board of Education, 104 App. Div. 162; Farrell v. Board of Education, 113 id. 405.) If the construction of that section standing alone be doubtful, that doubt will at once be resolved upon construing it with reference to other provisions of the charter defining the powers of the board of- education. ' Section 1067 provides that the board shall fix and regulate the salaries of the' city superintendent of schools, of the associate city superintendents and the district superintendents, and of members of the board of examiners ; and section 1091 provides that 'the board shall have power to fix the salaries of all' members of "the supervising and the ' teaching staff. It thus appears that the scheme provided is harmonious. The board of aldermen, upon the recommendation of the board of estimate and apportionment, is to fix all salaries payable o'ut of the city treasury, with certain enumerated exceptions,.- and the board of education is given the power to fix the salaries of the positions thus expressly excepted. That-view is further reinforced by reference to • the original charter. (Laws of 1897, chap: 378.) Sections. 56,1067 and 1091 of the revised charter correspond respectively with sections 56, 1069 and 1091 of the charter of 1897 (as amd. by Laws of 1899, chap. 417, and Laws of. 1900, chap. 751). Section 56 of the' act of 1897 did not contain the said exceptions enumerated in section 56 of the present charter, and section 1069 of the act of 1897 provided that the board of education should fix the salaries of the secretary of said' board, of the superintendent of school buildings, of the superintendent of supplies, of the auditor or auditors, of the city superintendent of schools, of members of the board of examiners, and of any other officers, clerks or subordinates. The changes thus outlined plainly show a deliberate intention to change the scheme and to give the board of. aldermen the power to fix the salaries of positions in the department of education, except that of teachei’s, examiners and members of the supervising staff. Superintendents are, of course, members of the supervising staff.

The appellant relies on the case of Gunnison v. Board of Education (176 N. Y. 11). That case merely decided that the board of education was the proper party defendant in. a suit to recover teachers’ wages. So, too, it is the proper party defendant in this suit; the difficulty is that tiie plaintiff has ho cause of action; It is true, of course, that the board of education is a corporation distinct from the municipality. It discharges a governmental function, but is not necessarily divorced from the city government. The Legislature might devolve its duties upon some other local agency. The question is one of construction, not one of power in the Legislature, and the construction of the statute in question seems too plain to admit of doubt.

The order should be affirmed, with costs.

Clarke, McLaughlin, Scott and Dowling, JJ., concurred.

Determination affirmed, with costs and disbursements.  