
    Earl E. Ellis, Resp’t, v. John E. Sharpe, as Trustee of School District No. 9, of the Town of Fabius, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1886.
    
    1. Pleadings—Ais, reasonable intendments must be indulged in, in SUPPORT OB' A PLEADING DEMURRED TO
    The complaint in this action alleged that the defendant was elected a trustee of the school district named, and that he employed the plaintiff to teach school in that district, at a sah.ry of forty dollars per month, fpr a term of three months. It further alleges that the plaintiff rendered the services for which he was employed, and that the defendant refused to pay the amount due for such services, although requested so to do. Held, upon demurrer to the complaint, that it must be assumed that the plaintiff was a qualified teacher, and that the services were solicited and contracted for, by and in behalf of the defendant, by a person authorized and empowered by law; that all reasonable intendments must be indulged in, in support of the pleading demurred to.
    
      3. Answer—Plaintiff’s lack of legal qualifications must be set up BY ANSAVER.
    
      Heid, that if the plaintiff was not qualified according to the law in regard to being a recipient of public moneys, or in regard to the collection of his wages by tax, that fact must be brought into the case by answer.
    3. Corporations—School districts are quasi cokporations.
    
      Hid, that school districts are quasi corporations, and that trustees are offcers of them, and that their acts bind the corporation when performed within their jurisdiction.
    4. Same—Action against school district by teacher for salary—What allegations need not be made.
    
      Held, that if the defendant was able to establish the fact that its refusal to give a warrant or order upon the public fund was because of an omission of duty by the plaintiff, it should aver that as a defense; that the plaintiff was not required to aver specifically each act, step, and du.y done under the contract for wages.
    Appeal from an order and judgment made at the special term of Onondaga county overruling a demurrer to a complaint.
    
      Waters & McLennan, for appl’t; Fuller, Fuller & Cook, for resp’t.
   Hardest, P. J.

Plaintiff’s complaint alleges that defendant was elected a trustee of the school district named, and being authorized and empowered by law, he employed the plaintiff to teach the school in said district, at a salary of forty dollars per month, for a term of three months, which employment and the terms thereof were accepted by the plaintiff. Then he alleges “that pursuant to said employment by the defendant, as trustee as aforesaid, the plaintiff entered upon the same, and taught the school in said district for the said period of three months, which term ended on or about the 19th day of December, 1884., That the wages of the plaintiff for his said services as teacher of aforesaid school amounted to the sum of $120, no part of which has been paid, and the defendant, as trustee as aforesaid, although thereto requested, has neglected and refused to pay the same or any part thereof, notwithstanding the said sum of $120 was due and payable on the 19th day of December, 1884, aforesaid.” We think it must be assumed that the plaintiff was a qualified teacher, and that the services were solicited and contracted for, by and in behalf of the defendant, by a person authorized and empowered by law. AE reasonable intendments are to be indulged in, in support of the pleading demurred to. Lorillard v. Clyde, 86 N. Y., 385.

If the plaintiff was not qualified according to the law in regard to being a recipient of public moneys, or in any regard to the collection by tax of his wages, the fact must be brought into the case by an answer. Section 42 of the school law (chap. 555 of 1864), as amended by chapter 406 of the Laws of 1867 (2 E. S. [7th ed.], 1166), does not, in terms prohibit a district from employing a teacher not having the qualifications named in section 42 of the school law. It merely prohibits payment in the money apportioned to the district, and declares that such wages cannot be collected by tax. In Dillaye v. Parks (31 Barb, 132) it was held that when a disability does not appear upon the face of the complaint, if the defendant wishes to avail of it, he must set it up as a defense. In Gilbert v. Sage (5 Lans., 287) it was held a defense that the sale of liquors was void and that it must be set up in defense to be available.

It is urged that the complaint is defective, because there was no averment, in terms, of a refusal to give an order on the supervisor for public moneys (subd. 10, § 45, school law), and of a refusal or neglect to collect any balance by tax. But it is alleged that the defendant “has neglected and refused to pay ” the wages earned. We think that allegation may be considered as equivalent to an averment ■ that the defendant had refused to give a warrant upon the supervisor, and a refusal to collect by tax of the district.

It has been repeatedly held that school districts are quasi corporations, and trustees are officers of them, and that their acts bind the corporation when performed within their jurisdiction. Wait v. Ray, 67 N. Y., 38; Horton v. Garrison, 23 Barb., 176. In Silver v. Cummings (7 Wend., 183), it was said “each school district has, when organized, a separate qualified corporate existence.” In Fister v. La Rue (15 Barb., 324), Johnson, J., says of such a corporation, viz: “Having availed itself of the services, and received the benefits, it is bound, in conscience, to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract.”

Section 44 of the school law (2 E. S. [7th ed.], 1166), provides that teachers shall keep school lists and accounts of attendance. By section 53 of the act it is made the duty of trustees to provide a book therefor, and each teacher is required to verify the entries by his oath. It must be assumed the teacher performed his duty in that regard. It is provided that until such entries have been made and verified “the trustees shall not draw on the supervisor for any portion of his wages.” 2 E. S. [7th ed.], 1169, § 53.

If the defendant is able to establish the fact that its refusal to give a warrant or order upon the public fund was because of an omission of duty by the plaintiff, it should aver that as a defense. We do not think plaintiff was required to aver specifically each act, step and duty done under the contract for wages. A trustee has no power to contract for unqualified teachers. Gillis v. Space, 63 Barb., 178. The demurrer admits the contract was made with the plaintiff, and that he performed the services named. It is, therefore, most reasonable to assume that defendant did its legal duty. Lorillard v. Clyde (supra).

Our attention is directed to Baker v. The City of Utica (19 N. Y., 326). That was an action of a city surveyor for services, which were included in assessments made for the expenses of certain local improvements, which assessment the city was proceeding to collect, but they had not been collected when the action was begun. It was then held that the charter provided “a peculiar mode of compensation for his services,” and that he was bound by that mode. We think the case does not sustain the contention of the appellant. We reach the conclusion that the complaint before us states facts sufficient to constitute a cause of action, and that the defendant must bring in any defense it may have by answer.

The judgment should be affirmed, with costs, and leave given to defendant to withdraw the demurrer and answer in twenty days, upon payment of costs of the demurrer and of this appeal.

Boardman and Eollett, JJ., concur.  