
    Georgiana E. Brown, Plaintiff, v. The Board of Education of the City of New York, Defendant.
    (Supreme Court, Kings Trial Term,
    January, 1911.)
    Municipal corporations — Officers and agents — Officers and employees or agents other than mayor and common council—Compensation—• Compensation of employees not officers — Statutory rate — Waiver by. employee.
    Officers — Compensation — Waiver of right to compensation.
    The provisions of section 1091 of the Greater New York charter " that no female branch principal or female principal of an elementary school having not less than twelve classes shall receive less than twenty-five hundred dollars per annum after ten years of service in said schools” may be waived by a female branch principal; and one who voluntarily stipulates to accept less salary is bound by her stipulation.
    The principle, that the stipulation of a public officer to receive a lower compensation than that fixed by law is against public policy, does not apply to such a case.
    
      Semble, the intent of section 1091 of the Greater New York charter is that a female branch principal who has served ten years shall receive the minimum salary referred to without regard to the number of classes in her school.
    Action to recover salary.
    Stephen O’Brien, for plaintiff.
    Charles McIntyre, Assistant Corporation Counsel, for defendant.
   Kelly, J.

At the close of the trial, both parties moving for the direction of a verdict, the trial judge reserving decision, it was stipulated that the jury might he discharged and that a verdict might be directed in accordance with the decision of the court, when made, with the same effect as if the jury were present.

I, therefore, deny the plaintiff’s motion, and grant that of the defendant, directing a verdict in favor of the defendant, and the plaintiff may note .the necessary exceptions to the rulings made.

I will briefly state my reasons for this conclusion. The case must be tried and disposed of upon the issues presented by the pleadings and by the parties at the trial. The plaintiff bases her right to recover upon the fact that, in October, 1904, she was a “ branch principal ” in charge of public school Eo. 91 in Brooklyn. That school, prior to October, contained less than twelve classes. On October 10, 1904, the defendant increased the number of classes in the school to more than twelve; and, since that time, the school has always been a school with more than twelve classes. Section 1091 of the Greater Eew York charter (Laws of 1901, chap. 466) provides as follows: “The board of education shall •have power to adopt by-laws fixing the salaries of all members of the supervising and the teaching staff throughout all' boroughs, which schedule shall provide for an equal annual increment of salary of such amount * * * that no female branch principal or female principal of an elementary school having not less than twelve classes shall receive less than twenty-five hundred dollars per annum after ten years of service in said schools.”

If the plaintiff’s right to the .increase depends upon the action.of the defendant in increasing the number of classes in the school, then I think she is barred from recovery by her written agreement executed, as far as the evidence in this case shows, voluntarily, without any coercion or compulsion, by which she stipulated that, if she was allowed to remain in charge of school number 91 after the increase in the number of classes, she would make no claim for increased compensation by reason of such increase, and would accept the salary which she was then receiving; I think this agreement was binding on the plaintiff. The cases submitted by the learned counsel for plaintiff, holding that a public officer cannot .stipulate to receive a lower compensation than that fixed by law and that such stipulation is against public policy, do not apply to this case.

There is no charge of coercion or improper methods on the part of the school authorities to procure the agreement; and the situation is presented when the defendant could have transferred the plaintiff to some other school of less than twelve classes, or could have refrained from increasing the number of classes in school ¡No. 91, and, indeed, could have •abolished the school altogether.

Therefore, if plaintiff’s right to the increased compensation depends on the action of .the board of education on October 10, 1904, in increasing the number of classes, her agreement was- part and parcel of the action of the board in allowing her to continue in charge; Such an agreement does not violate public policy. Nassoiy v. Tomlinson, 148 N.Y. 326; Sarecky v. Board of Education, 67 Misc. Rep. 294, Putman, J.; De Moulin v. Board of Education, Burr, J., N. Y. L. J., March 12, 1907; Ryan v. City of New York, 177 N. Y. 271; Grady v. City of New York, 182 id. 18; Sheehan v. Board of Education, 120 App. Div. 557, affd., 193 N. Y. 627.

I think the plaintiff, on October 10, 1904, was eligible for •appointment as principal of school ¡No. 91. .She was a branch principal ” with the certificate of a head of department, but she was expressly excepted from the provisions of defendant’s by-laws requiring a higher grade of certificate. If defendant abolished branch schools, it did not affect plaintiff’s standing. She was a principal — principal of a branch school, but none the less a principal because defendant may have done away with branch schools. I do not construe section 1091 as the learned counsel in this case interpret it, because I do not think plaintiff’s right to the benefit of the statute quoted depends upon the number of classes in her school. She was a “ female branch principaland, under section 1091, it would appear to be the intention of the Legislature that a female branch principal who had served ten years should receive the minimum salary referred to.

Judgment accordingly.  