App. Div.] First Department, March, 1910. LAWRENCE F. HOGAN, Appellant, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, Respondent. First Department, March 11, 1910. Municipal corporations — department of education, city of New York fixing salaries relative powers of aldermen and board of education. Under section 56 of the revised charter of the city of New York, as amended by chapter 435 of the Laws of 1902, and section 1067 of said charter, the power to increase the salary of a statistician in the department of education is vested in the board of aldermen, not in the board of education. Under the charter the board of aldermen has power to fix the salaries of all positions in the department of education except those which are expressly put under the jurisdiction of the board of education by sections 56, 1067 and 1091. APPEAL by the plaintiff, Lawrence F. Hogan, from an order of the Appellate Term of the Supreme Court, made on the 30th day of November, 1909, and entered in the office of the clerk of the county of New York, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff and sustaining the defendant's demurrer to the complaint. The opinions delivered at the Appellate Term are reported in Hogan v. Board of Education (65 Misc. Rep. 194). John E. O'Brien, for the appellant. Charles McIntyre, for the respondent. MILLER, J.: The plaintiff, a statistician in the department of education of the city of New York, sues to recover the amount of an increase of salary voted him by the board of education, which had accrued prior to the commencement of the action. The sole question to be decided is whether the board of education had the power to increase the plaintiff's salary. Section 56 of the revised charter (Laws of 1901, chap. 466, as and. by Laws of 1902, chap. 435) provides, inter alia: "It shall be the duty of the board of aldermen, upon the recommendation of the board of estimate and apportionment, to fix the salary of every officer or person whose compensation is paid out of the city First Department, March, 1910. [Vol. 137. treasury other than day laborers, and teachers, examiners and members of the supervising staff of the department of education." The nature of the plaintiff's duties is not shown except as it may be inferred from the title of the position held by him, but it is undisputed that he is not a day laborer, a teacher, an examiner or a member of the supervising staff. It has twice been decided by this court in the Second Department that said section 56 applies to the positions in the department of education not expressly excluded. (People ex rel. Ajas v. Board of Education, 104 App. Div. 162; Farrell v. Board of Education, 113 id. 405.) If the construction of that section standing alone be doubtful, that doubt will at once be resolved upon construing it with reference to other provisions of the charter defining the powers of the board of education. Section 1067 provides that the board shall fix and regulate the salaries of the city superintendent of schools, of the associate city superintendents and the district superintendents, and of members of the board of examiners; and section 1091 provides that the board shall have power to fix the salaries of all members of the supervising and the teaching staff. It thus appears that the scheme provided is harmonious. The board of aldermen, upon the recommendation of the board of estimate and apportionment, is to fix all salaries payable out of the city treasury, with certain enumerated exceptions, and the board of education is given the power to fix the salaries of the positions thus expressly excepted. That view is further reinforced by reference to the original charter. (Laws of 1897, chap. 378.) Sections 56, 1067 and 1091 of the revised charter correspond respectively with sections 56, 1069 and 1091 of the charter of 1897 (as amd. by Laws of 1899, chap. 417, and Laws of 1900, chap. 751). Section 56 of the act of 1897 did not contain the said exceptions enumerated in section 56 of the present charter, and section 1069 of the act of 1897 provided that the board of education should fix the salaries of the secretary of said board, of the superintendent of school buildings, of the superintendent of supplies, of the auditor or auditors, of the city superintendent of schools, of members of the board of examiners, and of any other officers, clerks or subordinates. The changes thus outlined plainly show a deliberate intention to change the scheme and to give the board of aldermen the power to fix the salaries of positions in the department of education, except App. Div.] First Department, March, 1910. that of teachers, examiners and members of the supervising staff. Superintendents are, of course, members of the supervising staff. The appellant relies on the case of Gunnison v. Board of Education (176 N. Y. 11). That case merely decided that the board of education was the proper party defendant in a suit to recover teachers' wages. So, too, it is the proper party defendant in this suit; the difficulty is that the plaintiff has no cause of action. It is true, of course, that the board of education is a corporation distinct from the municipality. It discharges a governmental function, but is not necessarily divorced from the city government. The Legislature might devolve its duties upon some other local agency. The question is one of construction, not one of power in the Legislature, and the construction of the statute in question seems too plain to admit of doubt. The order should be affirmed, with costs. CLARKE, MCLAUGHLIN, SCOTT and DowLING, JJ., concurred. JACOB PODALSKY and HYMAN FABRICANT, Respondents, v. JOHN B. IRELAND, Appellant. First Department, March 11, 1910. Landlord and tenant-facts not showing refusal to give possession — measure of damages. Mere proof that a lessee found the door of the demised premises locked on the date he was entitled to possession under his lease, and the fact that he had been previously told by a stranger that he could not get possession, does not establish a breach of the lessor's covenant to give possession. While the lessor is bound to give possession, he is not obliged physically to put the lessee in possession. The measure of damages where a lessor fails to give possession is the difference between the rent reserved and the rental value of the premises, together with such necessary expenses incurred by the lessee in preparing for occupation as were within the contemplation of the parties. There can be no recovery for sums paid by the lessee for electric light during the term, although the lease required the lessor to furnish such light free of charge. First Department, March, 1910. [Vol. 137. APPEAL by the defendant, John B. Ireland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 30th day of January, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 3d day of February, 1909, denying the defendant's motion for a new trial made upon the minutes in an action brought to recover damages for a failure of the defendant as lessor to give the plaintiffs possession of certain premises which it is claimed the plaintiffs leased from the defendant for the term of three years from the 1st day of May, 1905. The agreement of lease was entered into between the plaintiffs and the defendant's son, acting as agent for the defendant under a written power of attorney which gave authority to lease for a period of two years only. There is evidence, however, tending to show a general agency. The lease provided for the making by the lessor of certain alterations; that the demised premises should be ready for occupancy on April 15, 1905, and that the lessees should have the privilege of occupying the same from that date until the 1st of May, 1905, free of charge. The only evidence to show a breach by the defendant was the testimony of one of the plaintiffs to the effect that on April thirteenth the premises were fitted up for cold storage (that was evidently the situation when the lease was made); that on the first of May he went to take possession and found the door locked, and that a day or two before that he had had a conversation with a gentleman, not named, who told him that he could not get the place. The lease provided that the defendant should furnish free electric current for lighting the premises. The plaintiffs were allowed to prove the sum paid by them for electric lighting during the three years following May 1, 1905, and that sum was included in the judgment. Isaac Josephson, for the appellant. Max D. Steuer, for the respondents. MILLER, J.: We shall assume that there was sufficient evidence of the general agency of the defendant's son, and that the agreement of lease was App. Div.] First Department, March, 1910. binding upon the defendant; but there is no evidence whatever to show a breach of that agreement by the defendant. By it the defendant agreed to have the premises ready for occupancy on the fifteenth of April, but there is no evidence whatever that he did not perform that agreement. The mere fact that the plaintiffs found the door locked on the first of May does not prove that they were kept out of possession by any act of the defendant. Of course, the defendant was obliged to perform his covenants, and if he failed to have the premises ready for occupancy as he agreed, he would doubtless be liable for the damages caused by the breach. While he was bound to give the plaintiffs the right to possession, he was not obliged physically to put them in possession. (Smith v. Barber, 96 App. Div. 236; Trull v. Granger, 8 N. Y. 115.) What some stranger may have said to the plaintiffs was not evidence against the defendant. Moreover, the plaintiffs were only entitled to recover the difference between the rent reserved in the lease and the rental value of the premises, and any necessary expenses incurred in preparing for occupation of the premises which were within the contemplation of the parties. (Friedland v. Myers, 139 N. Y. 432.) Of course, rental value would have to be determined with reference to all of the privileges which the lessee was to enjoy, but there was no basis whatever for allowing a recovery for what the plaintiffs actually paid for electric lights during the period covered by the lease. The judgment should be reversed and a new trial granted, costs to appellant to abide event. INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and DOWLING, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event. |