Opinion
April 13, 1942.
Present — Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ.
Appeal from an order in a proceeding under article 78 of the Civil Practice Act, denying petitioners' application for an order requiring the board of education to fix the salary of the petitioner Jemmott and thirty-two other grade 4 clerks similarly situated at an amount based upon $2,470 per annum, in accordance with its salary schedule 2-D, or at an amount based upon $2,400 per annum, the minimum salary fixed for grade 4 clerical employees by the municipal civil service commission; and for an order directing the board to fix the salary of the petitioner Guilfoyle and eight other grade 5 clerks similarly situated at an amount based on $3,096 per annum, in accordance with its salary schedule 2-E, or at an amount based upon $3,000 per annum, the minimum salary fixed by the municipal civil service commission for grade 5 clerical employees. Order unanimously affirmed, without costs. The power of the board of education to fix these salaries is absolute in the exercise of its discretion, which discretion may not be controlled by the courts. The limitation upon that power, indicated in Matter of Ryan v. Kaplan ( 213 App. Div. 131; affd., 240 N.Y. 690), is not pertinent to the situation herein. That case involved the converse of that with which we are here concerned. The remedy of the appellants, if they are entitled to one, seems to rest with the board of education itself, the Commissioner of Education or the Legislature.