
    Rose M. Finigan, Appellant, v. The Board of Education of the City of New York, Respondent.
    Second Department,
    November 15, 1912.
    Municipal corporation — school teacher, city of New York—suit to recover balance of salary — res adjudicata—prior determination in mandamus proceedings.
    It is a good defense to an action brought by a public school teacher in- the city of New York against the board of education to recover a balance of salary claimed to be due, to allege that there was a final adjudication upon the merits on a prior proceeding of mandamus brought by the plaintiff to compel the defendant to reinstate her in the same employment which she claims to have held during the period and for the same services.
    A public school teacher in said city holds no office, but her relation with the board of education is contractual, she being an employee.
    Appeal by the plaintiff, Rose M. Finigan, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county óf Kings on the 26 th day of «January, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the first defense contained in the defendant’s answer..
    
      David Ross, for the appellant.
    
      Charles McIntyre [Terence Farley and Archibald R. Watson with him on the brief], for the respondent.
    Interlocutory judgment affirmed, with costs, on opinion of Mr. Justice Maddox at Special Term.
    Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ., concurred.
   The following is the opinion delivered at Special Term:

Maddox, J.:

Plaintiff seeks to recover an alleged unpaid balance of salary as a school teacher, which balance is the difference between that which she received and that which she claims to have been entitled to as an incident to her said employment from January 1, 1903, to July 1, 1904.

"The defendant, after denying its liability, by a separate and special defense pleads in bar to plaintiff’s right of recovery here the final determination upon the merits of a proceeding instituted by her. as the relator for an alternative writ of mandamus commanding her reinstatement by the defendant to the same employment' she now claims to have held during the aforesaid period of time, for the services in which said employment she here seeks to recover said unpaid balance of salary.

Plaintiff demurs to said separate defense on the ground that “ it is insufficient in law upon the face thereof,” and her counsel cites Steinson v. Board of Education (49 App. Div. 143; affd., 165 N. Y. 431) as conclusive on that proposition.

Plaintiff held no office; her relation as school teacher with the defendant was contractual, that of an employee, though as an employee the school teacher’s rights are protected by statutory provisions.

. There can be no doubt, I take it, that a final determination upon the merits in a mandamus proceeding concludes the parties thereto upon all material issues involved therein, for as said in People ex rel. McCabe v. Matthies (179 N. Y. 242, 248), “it is well established that where a matter has been submitted to an authorized judicial tribunal, its decision is final between the parties until it has been reversed, set aside or rejected; and the rule of res adjudicata applies to all judicial determinations, whether made in actions, or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination.”

Referring to the separate defense here under consideration it will be seen that defendant alleges that the finál determination in plaintiff’s alternative writ of mandamus proceeding was upon the merits and consequently all questions here which were material to and determined in that proceeding are.res adjudicata as between the parties in that proceeding who are the parties to this action.

. The views here expressed are not in conflict with the holding in the Steinson case, since in the Steinson mandamus proceeding, an application for a peremptory writ, the determination was not on the merits, but on the ground of the relator’s laches (See People ex rel. Steinson v. Board of Education, 158 N. Y. 127, 128); and in the Steinson case (165 id. 431) Judge Landon, speaking for the court (at p. 434), said: “ Mandamus would not lie as of strict right, and might be refused in the discretion of the court; hence the former denial of that remedy [referring to the mandamus proceeding] does not bar the present action.”

From a careful consideration of the complaint and answer it appears that plaintiff’s status as a school teacher will be one of the questions presented in this litigation and if that be so the special defense is sufficiently well pleaded and the demurrer should, therefore, be overruled.

Judgment accordingly for defendant, with costs.  