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McElroy v. Board of Education

158 A.D. 219 Court Second Department, Decision date 1913-07-25 English

Delivered by Stapleton, J.:

Contents

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Edward McElroy, Respondent, v. The Board of Education of the City of New York, Appellant.
Second Department,
July 25, 1913.

Headnote

Judgment — vacating and setting aside.
The board of aldermen of the city of New York in 1903 fixed the salary of an employee of the board of education at thirty-five dollars per week, which remained unchanged until September, 1910, when the board of
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aldermen changed the salary to twenty-five dollars per week. The employee was paid twenty-five dollars per week in the meantime, pursuant to an unlawful fixation by the board of education. Said employee brought an action in 1911 for the additional ten dollars per week from 1908 to date, in which judgment was entered upon his acceptance of an offer by the defendant for the additional ten dollars per week, down to September, 1910. Thereafter the plaintiff sought to vacate the judgment on the ground that there was an oral understanding between his attorney and the deputy comptroller of the city that the judgment was not to determine the litigation between the parties in order that he might secure the benefit of an adjudication of the court in an action brought by other employees, construing the resolution of the board of aldermen in 1910 changing the salary.
Held, that an order vacating and setting aside the judgment should be reversed and the plaintiff’s motion denied.
Appeal by the defendant, The Board of Education of the City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of May, 1918, vacating and setting aside a judgment previously entered herein and setting the case down for trial.
Charles McIntyre [Terence Farley and Archibald R. Watson with him on the brief], for the appellant.
John T. Loew, for the respondent.

The order from which the appeal is taken, made upon plaintiff’s motion, vacates and sets aside a judgment entered in his favor upon his acceptance of an offer by the defendant to allow the plaintiff to take judgment against it.

The judgment was entered on the 6th day of. February, 1912, and plaintiff collected upon it on the 26th day of February, 1912. This motion was noticed on the 6th day of May, 1913.

The only ground advanced by the plaintiff in support of the motion is that there was an oral understanding between the attorney for the plaintiff and the deputy and acting comptroller of the city of New York that the judgment was not to determine the litigation between the parties. The assertion of this understanding is sharply disputed, and, in any event, if the

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understanding existed it was merged in the j udgment. (Davies v. Mayor, etc., 93 N. Y. 250 , 255.)

The plaintiff commenced an action on the 24th day of April, 1911. He was an architectural draftsman employed by the board of education of the city of New York. From the 8th day of April, 1908, to the 25th day of April, 1911, he was paid a salary of twenty-five dollars weekly, pursuant to a fixation thereof by the board of 'education. The board of aldermen, then the properly authorized body, had, in 1903, made a fixation of thirty-five dollars weekly, which remained unchanged until the 23d day of September, 1910, when the board of aider-men, on the recommendation of the board of estimate and apportionment, with the approval of the mayor, fixed the salaries in accordance with the existing current payrolls. The city construed this fixation to be twenty-five dollars weekly. The plaintiff’s claim was for the additional ten dollars weekly from March, 1908, to the 25th day of April, 1911. The sum for which the judgment was entered included only the arrears which accrued down to September, 1910. The court, at the suit of those who did not compromise, disagreed with the defendant’s construction of the resolution of the 23d day of September, 1910, and the plaintiff seeks to secure, by vacating the judgment, the benefit of that adjudication.

There is no assertion of mutual mistake or of fraud. We are unable to perceive any reason for vacating or setting aside a judgment upon such a state of facts. Judgments, whether resulting from decision, verdict or agreement, are solemn instruments, and should not be subject to interference suggested by caprice, interest or afterthought. They should stand irrevocable unless, in furtherance of justice, they should be vacated upon grounds which have been established as authorizing’ the exercise of the extraordinary power of the court. (Ward v. Town of Southfield, 102 N. Y. 287 , 292; Davies v. Mayor, etc., 93 id. 250, 253; Stilwell v. Carpenter, 59 id. 414, 423.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Jenks, P. J., Rich and Putnam, JJ., concurred; Carr, J., concurred, but reserved any opinion as to whether the judg

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ment sought to be vacated would be a bar to another action for arrears of salary which accumulated after the entry of the judgment. (Perry v. Dickerson, 85 N. Y. 345 .)

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.

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