
    The People of the State of New York ex rel. Paul Ajas, Appellant, v. The Board of Education of the City of New York, Respondent.
    
      Mandamus —the writ is not ordinarily granted to determine controverted questions' _ of law and fact — it is not demanddble as a matter of right—-effect of not taking - issue on opposing affidavits — the amount of salary of a janitor in a public school, should be determined by action. ' " -
    It is not the province óf a writ of mandamus to adjust controverted 'questions of law and fact, and while there have been adjudications on this class of questions in mandamus proceedings, it is rarely that an appellate .court-'will interfere with the discretion of the Special Term in refusing to issue:a writ of mandamus to compel such an adjudication.
    In the case at bar the Appellate Division refused to interfere with the action of . the Special Term in refusing to issue a writ of mandamus requiring the board-Of education of the city-of New York to pay the relator, the janitor of a public school in the borough of Brooklyn, a greater salary than he was receiving, it. appearing that his right to receive such 'greater salary was dependent upon a controverted question of law, and that he had an adequate remedy by. action.
    The writ of mandamus is -not always demandable as a matter of right, but frequently rests in the discretion of the court; this is peculiarly true where the rights of the moving party are not clear and unquestioned.
    ■ If a party applying for a writ' of mandamus does not take issue upon the allegations of the opposing affidavits, but proceeds to the argument of .the motion,
    
      - his action is equivalent to a demurrer. He admits the allegations contained in the opposing affidavits, but denies their sufficiency in law to prevent the issuing of the writ.
    Appeal by the relator, Paul Ajas, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of June, 1904, denying the relator’s motion for a peremptory writ of mandamus.
    
      Louis J. Halbert, for the appellant.
    
      William Hughes [ James D. Bell and John J. Delany with him on the brief], for the respondent.
   Woodward, J.:

The relator is janitor of Public School No. 123 of the borough of Brooklyn, and he seeks a peremptory writ of mandamus to compel the board of education of the city of New York to place his name upon the payroll of the said board of education at the annual-salary of $4,633.97 per annum, it being claimed that he is entitled to this sum by reason of the provisions of section 47 of the Rules and Regulations of the School Board of- the Boroughs of Manhattan and The Bronx, which, it is claimed, constitutes the prevailing rate of wages established by the board of education for the calculation of. and the payment of janitors’ salaries in the city of New York. The learned court at Special Term has denied the writ, and the relator appeals to this court.

The order appealed from should be affirmed. It is not the province of a writ of mandamus to adjust controverted questions of law and fact; these belong to the field of actions, and while there have been adjudications of this class of questions, it is rarely that an appellate court interferes with the discretion of the court at Special Term to compel action. If the relator is entitled to the amount of compensation which he claims, and any part of such compensation is denied him when it shall become due and payable, he has a complete remedy'at law to compel the payment of such sum, and once the law is settled there is no reason to assume that the board of education will refuse to do its duty. No rule is better settled by the decisions of the courts than that in such a case mandamus will not lie, (People ex rel. Lunney v. Campbell, 72 N. Y. 496, 498, and authorities there cited; People ex rel. Dowdney v. Thompson, 99 id. 641.) The writ of mandamus is not always demandable as a matter of right, and whether it shall be granted or not frequently rests in the' discretion of thé court (People ex rel. Wood v. Assessors, 137 N. Y. 201, 204, and authorities there cited), and this is peculiarly true where, 'the lights.of the party are not clear and unquestioned. The principles which govern the issuing of a writ, of mandamus to compel the performance of an act which the law requires, are quite well established,- and it is settled that where a remedy of this character. is invoked there must 'be a clear and unquestioned legal right.” (People ex rel. Mott v. Board of Supervisors, 64 N. Y. 600, 604, and authorities there cited; People ex rel. Slavin v. Wendell, 71 id. 171, 172; People, ex rel. Dady v. Coler, 171 id. 373, 376, 377, and authorities there cited.)

The affidavits before us in this case differ in their statement of facts. In such a case, if the relator takes no issue upon the allega-' tions of the affidavit of the defendants, and -proceeds to argument, and asks for a peremptory wi;it, that is equivalent to a demurrer; it admits the truth of those allegations as statements of fact, but denies their sufficiency in law to prevent the issuing of the writ. (People v. Supervisors, 73 N. Y. 173, 175 ; People ex rel. Dady v. Coler, supra.) The theory of the relator is that, under the authority of section 1068 of the revised Greater 'New York charter. (Laws of 1901, chap. 466), providing that “ until the board of education" shall act under the provisions of this section the by-laws, rules and. regulations of the board of education and of the several borough school boards in force on the first day of January, nineteen 'hundred and two, shall remain in full force and effect so fai^ as they are not inconsistent with the provisions of this act and are applicable,” the board of education has adopted a rule existing in the old city of New York, including the present boroughs of Manhattan and The Bronx, for establishing the salaries • or compensation of janitors,' and that under this rule he is denied full compensation. The rule to xvhich reference was made involves a measurement of spaces and a counting of boilers used' in heating, fans, etc., and was designed originally to meet the situation in the .compact city of New York as it existed prior to the consolidation,. At the same time there was a system extant in Brooklyn, adopted by the Superintendent of School Buildings,” and the respondent denies that such system is no longer in existence, and avers that such system was approved by the Borough School Board prior to the merger of said Borough Board on February 3, 1902, for the general Board as then organized, and the schedule fixed by said superintendent is the only established regulation now standing fixing the compensation of Brooklyn janitors and has been so recognized by the respondent, the Board of Education of the City of New York, except so far as same has been increased or amended by the Board of Estimate and Apportionment of the City of New York, as hereinafter set forth.” It appears to be recognized and admitted by the relator that the salaries of janitors in the boroughs of Richmond and Queens, both within the city of New York, were adjusted upon a different basis from those of either Brooklyn, or Manhattan and The Bronx, and a careful reading of the charter shows that section 47 of the Rules and Regulations and By-laws of the School Board of Manhattan and The Bronx is inconsistent with and not applicable to the relator’s situation, and it must, therefore, be= denied any force or effect. It was not designed to afford a rule for adjusting salaries or compensation in the Greater New York, but for the compact boroughs of Manhattan and The Bronx, and the school board of Brooklyn having had a system, which system is alleged to be in force and effect now, it is difficult to see where the relator has any better right to hold that said section 47 controls than that the rule heretofore in effect in Brooklyn should govern. If one rule was preserved by the statute it is equally clear that the other must have been, and the two rules, suited to the localities for which they were designed, and differing from those in effect in the boroughs of Queens and Richmond, appear to us much more in harmony with section 56 of the revised Greater New York charter (as amd. by Laws of 1902, chap. 435), as well as with its general scope and purposes, than the forced construction which the relator seeks to place upon it. .There is no reason to assume that the Legislature, by a general provision to retain in force such rules, regulations, etc., as might be necessary to facilitate public business, intended to confer an obligation upon the board of éducation to increase the salaries of janitors in the borough of Brooklyn, or through the entire territory. That .it did not is evident by the provisions in section 56 of the revised charter (as amd. supra). This gives the board of aldermen, upon the recommendation of the board of estimate, and apportionment, the power to fix all salaries paid out of the city treasury, with certain exceptions,- and there is no authority given the hoard of education to fix the salaries of janitors, though the power to appoint them is specially delegated by section 1074 of the revised charter to said board. The general scheme of- the charter was to merge various municipalities ’under one government with as little change as possible in the ■details of administration, -and it may he assumed that if the Legislature had intended to increase salaries, this fact would have been made manifest in ¡a more direct way than by a provision continuing in force unknown rules and regulations. Tim last sentence of. section 56 of .the revised charter (as amd. supra) provides that “ all salaries as fixed on the first day of January, nineteen hundred and two, shall continue in force until fixed by the board of aldermen as in this section provided,” and it is ■ conceded, for the purposes of this controversy at least, that on the eighth day of January,- 1904, the Board of Estimate and Apportionment adopted a resolution, subject to the concurrence of the Board of Aldermen ratifying, and confirming the action of the Board of Education fixing the relator’s salary as janitor of Public School No. 123, Brooklyn, at $3,753.12 'from December 1, 1903that the' salary so fixed was ' approved and adopted by a' resolution of- the Board of Aldermen of the City of New York on the Í5th day of March, 1904, and the • resolution was approved by the Mayor'March 18, 1904,” and " the relator received certain sums of money from the Board of Education or its representative the City of New York, for which monthly payment the plaintiff receipted in full accord and satisfaction, without protest or reservation for all claims for which the plaintiff at these times respectively had against the Board of Education of the City of New York, for liis- services ás a janitor of a Public Schóol,” these payments being made subsequent to the increase of salary above mentioned.

The relator accepted employment under the same conditions which now prevail; his salary has been increased by the action of the proper officials; he has accepted such increase and receipted for the same, and if he has any claims which are valid in law the courts afford him an adequate remedy by means of' an action, so that he Ras no cause for complaint if this court refuses to grant him .the ' relief demanded, to which we are convinced he has no right.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Jenks, Rich and Miller, JJ., concurred; Hirschberg, P. J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  