Opinion
March 20, 1950.
Present — Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ.
In this article 78 proceeding to compel the board of education to pay 167 petitioners for extra services rendered in 1943 and 1944 afternoon summer playground sessions, a final order was entered granting the application as to 73 petitioners, dismissing the petition as to 14 petitioners, and severing the proceeding as to 80 petitioners. The board of education appeals from that portion of the order granting relief to the 73 petitioners. The 14 petitioners appeal from so much of the order as dismisses the petition as to them. Final order, insofar as appealed from, modified on the facts by striking the name Robert Muentener from the list of custodians performing services in 1943, appearing in the first ordering paragraph, and by striking the name John E. Ahearn from the list of custodians performing services in 1944, also appearing in the first ordering paragraph. As so modified, the final order is unanimously affirmed, without costs. On April 22, 1925, the board of education adopted a salary schedule for extra services of custodians. On December 29, 1927, an amended salary schedule for regular services of custodians was adopted. Both schedules having been on file with the State Commissioner of Education on March 5, 1931, they were fixed as minimum compensation for the services therein provided by the "Salary Freezing Law" of 1931 (L. 1931, ch. 540). Although the board of education had power to change the formula under which the annual compensation of custodians under the "indirect" system was computed for regular services under the 1927 schedule to the new formula under which petitioners were paid an annual sum for both regular and extra services, the board had no power to fix compensation computed under the new formula at an amount lower than the actual compensation received by petitioners under the two salary schedules on file on March 5, 1931. ( Matter of Putnam v. Marshall, 286 N.Y. 485, 493; Matter of Russell v. Buck, 294 N.Y. 50.) Since it is not disputed that the 73 petitioners, with the exception of Muentener for 1943 and Ahearn for 1944, with respect to whom the application is granted, received as compensation under the "modified indirect" system for both regular and extra services a sum which was no more than the compensation these petitioners received on March 5, 1931, under the 1927 schedule for regular services alone, these petitioners must be paid for the extra services they rendered. In our opinion the 1925 schedule for extra services applies also to schools built after 1931. Matter of Putnam v. Marshall ( supra) determined only that the formula by which the compensation for regular services was computed before 1931 could be changed, and that the compensation of custodians in schools built after 1931, for regular services, could be computed according to different principles, but that the compensation for regular services fixed in the salary schedules of schools in existence before 1931 could not be decreased. The effect of the extra services schedule was not in issue in Matter of Putnam v. Marshall ( supra) and, hence, the decision in that case is not — as the board urges — a holding that the extra services schedule does not apply to schools built after 1931. That the extra services schedule does apply to schools built after 1931 is clear. An annual compensation for regular services depended on the physical characteristics of the school, i.e., floor space, paved area, heating system, etc., and, therefore, the compensation of the custodian in each school for regular services is different. But the rate of compensation for extra services was the same in each school. The actual compensation for extra services varied only because different extra services were rendered in various schools. There appears to be no reason why the 1925 schedule for extra services on file in 1931 should not be applicable to schools built after 1931. However, the petition was properly dismissed as to these 4 petitioners. They have been paid for regular and extra services a sum much greater than the amount claimed for extra services under the 1925 schedule. Since the minimum compensation for regular services in schools built after 1931 is not fixed by statute, petitioners must be deemed to have been paid if they received in the years involved compensation greater than the amount claimed for extra services in this proceeding. It is conceded that petitioner Muentener did not perform the extra services in 1943 and that petitioner Ahearn did not perform the extra services in 1944. Petitioner Conlin apparently performed the extra services in 1943 and 1944 as a provisional employee.