
    James K. Gatchell, Plaintiff, v. Michael J. Day, as Mayor, etc., et al., Defendants.
    (Supreme Court, Albany Trial Term,
    July, 1897.)
    1. Equity — When, an individual cannot test the constitutionality o£ a statute.
    A person who does not proceed under any of the statutes which • authorize actions by taxpayers, but who merely seeks to recover, by virtue of his own private right, his salary as superintendent of a ¡school district, will not be allowed to maintain an equitable action designed " to test the constitutionality of an act (chapter 905, Laws of 1896) which creates a city, embodying the school district, and which act abolishes the district.
    2. Services — Acceptance of other employment.
    Where "it appears that the claimant has been paid for all the services which- he has rendered to the school district and also that, after its" officials ceased to act, he accepted employment in a similar capacity from, the newly-created city, he must be deemed to have relinquished his claim for any further employment by the school district.
    3. Equity — Remedy at law.
    A person cannot proceed in equity where he has an adequate remedy at law.
    Action to test the constitutionality of certain portions of the act creating the city of Watervliet. (Chap. 905,-Laws 1896.)
    Louis W. Pratt, for plaintiff.
    • John H. Gleason, for defendant- Day, as mayor, etc., and other defendants. t
    
    John T. Cook (Eugene Burlingame, of counsel), for defendant Braman and other defendants.
   Chester, J.

The plaintiff seeks by this action "to test the constitutionality of those portions of the act creating the city of Watervliet (chap. 905, Laws 1896), which relate to public instruction and to recover his- salary as superintendent of schools of -thie West Troy school district.

The act above referred to creating the city of Watervliet contains a provision that the'West Troy school district, which was created by chapter 881, Laws of 1895, shall cease to exist from and after December 31, 1896. The board of education of that school district on August Id, 1895, by resolution appointed the plaintiff superintendent of the district, to act during its1 pleasure, at the rate of $1,200 per annum.’ Pursuant to that appointment he acted as such superintendent down to and including the 31st day of December, 1896, and was paid for his services at the rate mentioned. During the month of January, 1897, the plaintiff acted as superintendent of schools and secretary of the board of education of the city of Watervliet. About February 1, 1897, he was appointed superintendent of schools pro tempore by that board for the month of February, 1897, and acted as such during that month. He was paid his salary for the months of January and February, 1897, by the chamberlain of the city-of Watervliet upon the audit of its board of education.

He claims, however, that he is still the superintendent of schools of the West Troy school district and that the defendants who constituted the board of education of that district prior to the 31st day of December, 1896 — eight in number — still constitute such board, notwithstanding the provisions of chapter 905, Laws of 1896, abolishing that board and relating to public instruction in the city of Watervliet—which provisions he alleges are unconstitutional, and alleges that such defendants since the 31sjt day of December, 1896, have failed and neglected to exercise any of the powers or to perform any of the duties devolving upon them as the board of education of the West Troy school district and that the defendants constituting such board have not since that date met as such board nor paid the plaintiff his salary as superintendent of schools of that. district, although requested so to do.

Even if it should be conceded for the purposes of this case that the provisions of the act creating the city of Watervliet, relating to public instruction therein and which displaced the provisions of law creating the West Troy school district, are unconstitutional and void, as the plaintiff claims, still I think he cannot maintain this action. '

He does not allege that he is a taxpayer, nor make any attempt to bring his action within chapter 531, Laws of 1881, as amended by chapter 673, Laws of 1887, and chapter 301, Laws of 1892, nor within section 1925, Code of Civil Procedure—which are the provisions of law governing actions by taxpayers as such. ■ On the other hand his counsel disclaims any intention of bringing the-action under the Taxpayers’ Acts or for the benefit or on behalf . of tire public, and- insists that it is brought to enforce a private right of the plaintiff.

The only relief demanded iri the complaint touching a private right of the plaintiff is to have his salary paid.-

He does not allege that he has performed any services as superintendent of schools under the authority of the board of education of the West Troy school district since January 1, 1897. On the contrary it is admitted that for the months óf January and February, 1897, he acted as superintendent, of schools of the city of Watervliet, and has been paid for such services by that city. He makes no claim that the city owns him any salary for any services. The only claim is against the West Troy school district. He has rendered no services for that district since January 1, 1897, and-his salary as superintendent has been paid by that district in full up to that date — which was the date also that he began to serve the city of Watervliet as superintendent of schools as above stated.

With these facts confronting the plaintiff he is not in a position to ask the court to say that it was unconstitutional for the legislature to abolish the West Troy school district, as it has assumed to do in creating the -city of Watervliet; nor have we the right io assume that the school hoard of the abolished district if it had not been lawfully swept out of existence would have continued- to employ the plaintiff. He alleges that that board has not met and has not performed any duties since^ December 31, 1896. That he has accepted this failure to act as -evidence that the board did not choose longer to have him act as superintendent of the West Troy school district is shown by his voluntarily accepting employment from the 1st of January, 1897, under the board of education of the city of Watervliet and receiving pay therefor from such city. When he accepted service under the new máste-r he effectually in my opinion relinquished his claim for employment under, the former master.

More than this, if the plaintiff has any right of action to enforce payment of his salary, it is a right based upon contract to- be enforced in an action at law. Instead of pursuing that remedy he has brought his action in equity in violation of the rule that a court of equity cannot be called upon to grant relief to- a, party who by bis complaint and proof shows that he has an adequate remedy at law. ■

This disposes of the plaintiff’s claim for salary so far as this action is concerned, which as we have seen is the only matter personal to him involved in the action.

The only other questions in the action are public questions, and they need not be discussed or determined, as the plaintiff has not sued as a taxpayer, nor has he alleged facts showing that any of the defendants contemplate any illegal action or any waste of public funds. ' 1

The complaint is, therefore, dismissed, -with one bill of .costs to the defendants represented by Mr. Cook.

Complaint dismissed.  