John E. O'Brien, for plaintiff.

Francis K. Pendleton, Corp. Counsel, for defendant.

GOFF, J. At the commencement of the school year, on the 1st of October, 1899, plaintiff was appointed teacher of shop work in the public schools at an annual salary of $960. On the 3d of May, 1900, there went into effect an amendment to the Greater New York charter (Laws 1897, p. 394, c. 378, § 1091) by Laws 1900, p. 1607, c. 751, § 4, which, among other things, provided that:

*

"The board of education shall have power to adopt by-laws fixing the sal** * all members of the supervising and teaching staff. aries of ** Such by-laws shall establish a uniform schedule of salaries for the supervising and teaching staff throughout all boroughs, which schedule shall provide for an equal annual increment of salary of such an amount, that

no male teacher in said elementary schools shall receive less than nine hundred dollars per annum nor shall the annual increment for any male teacher therein be less than one hundred and five dollars. * No salary now

paid to any member of the supervising and the teaching staff of any of the public schools in the city of New York shall be reduced by the operation of this section, and the aforesaid equal annual increment for each class or grade of the supervising and the teaching staff of said public schools shall be uniform throughout each class or grade, and each of said persons shall at once receive all the emoluments in accordance with the above schedule of minimum salaries to which said person is entitled by reason of merit, of experience and of the grade of class taught."

On the same day, and in pursuance of the act, the board of education adopted a schedule, known as "Schedule VI," by which a minimum salary of $900 for the first year was fixed as the salary of teachers of plaintiff's grade, with an annual increase of $105 for a period of 12 years, when a maximum fixed by law would be reached. At the time this schedule went into effect plaintiff was, under his original appointment, receiving $960 per year, and he continued to receive that sum, in monthly payments, for the balance of the school year, until the 1st of October, 1900, when under the schedule he received salary at the rate of $1,005 per year, and for each subsequent year received the prescribed increase of $105. No question is raised as to the efficiency of the plaintiff as a teacher, nor as to his having been appropriately graded or classified, nor as to the propriety or validity of the schedule. The only question to be determined is, what salary was plaintiff entitled to receive, under the schedule, when it went into effect on the 3d of May, 1900? He contends that from that date he was entitled to receive a minimum salary, at the rate of $1,005 per year, until the 1st of October next ensuing, when, at the commencement of the new school year, he became entitled to receive the annual increase of $105 for each recurring year. The defendant contends that he was only entitled to receive for the first year the minimum rate of $900, and thereafter the annual increase of $105; and the fact that he actually received $960 for the first year was because he had been employed at that figure, and the act prohibited any reduction. While the act cited is very prolific in language, yet in vain may it be searched for any express terms or provisions which are applicable to or control the precise question involved. Recourse must be had, therefore, to the act which was amended, to the object and pur

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pose of the amendment, and to the reason of the thing, in order that the true intent and meaning of the statute may be ascertained. When the different boroughs which now constitute the city of New York were consolidated into one municipality, a scheme of government for the department of public education was devised. Such a scheme was rendered difficult of accomplishment, because of the different systems existing in the various municipalities and school districts within the territorial limits of the new city. It is not necessary to refer to the statutes or by-laws then in existence, beyond the mere statement that out of the confusion there was sought to be shaped something like order, and how far this was successful may be measured from the provisions which empowered the different school boards to fix the salaries. of the teaching staff, although:

"Said salaries need not be uniform throughout all the several boroughs, nor in any two of them, nor throughout any one borough." Charter, § 1091

Thus large power was given to the individual school boards to adopt such salaries as they deemed proper, provided only that:

"Such salaries shall be regulated by merit, by the grade of class taught, by the length of service, or by the experience in teaching of the incumbent in charge, or by such a combination of these considerations as the school board may deem proper." Section 1091.

It was to be expected that, with such power in the hands of the different boards, different standards of compensation should be adopted, thus giving rise to much dissatisfaction among the teachers, not only on account of the unfairness, but also on account of the insufficiency. This defect was in part remedied, in 1899, by an act (Laws 1899, p. 883, c. 417) which amended section 1091 of the charter by adding to it certain restrictions as to the minimum salaries which might be paid to teachers and principals. By this amendment no regular teacher could be paid less than $600 per annum. Although some relief was given by this act, it was but slight; and the continued dissatisfaction with existing conditions was expressed in the enactment of chapter 751 of the Laws of 1900, under which the present action has been brought. It is entitled:

*

"An act to amend chapter 378 of the Laws of 1897 relative to the department of education, for the purpose of establishing a uniform salary schedule and providing funds therefor."

The fourth section is an amendment of section 1091 of the Greater New York charter. That section gives to the central board of education, instead of to the individual school boards, the power to fix salaries, but greatly limits that authority by providing for a uniform schedule of salaries, and it further directs, with much minuteness, what shall be the minimum salaries and increments for the various grades of the teaching and supervising staff. The purpose of this act was to vest the power of fixing salaries within clearly defined limits, according to a uniform schedule, in the central or governing board; and the reason of it was, not only to pay a just and uniform compensation to the teachers, but to remove the inequalities, the incongruities, and the capriciousness of the old system. In construing the act the reasons for its creation must be borne in mind; but such reasons may

not be allowed to limit the discretion formerly given to the boards, except in so far as the act specifically states. If, as in the present case, an amendment is lacking in some particular or is capable of more than one construction, it is permitted to look, not only to the provisions of the original act, but the court may avail itself of any legitimate aids for the purpose of ascertaining its true meaning. 2 Lewis' Suth. Stat. Constr. (2d Ed.) §§ 450, 456.

When the outlying districts were annexed to the city of New York by the Greater New York charter, section 1086, entitled "Continuation of Yearly Contracts with Teachers in Territory Consolidated," directed that:

"All yearly school contracts by and between the local school authorities of any school district whose territory is so annexed and consolidated by this act and the teachers in such district as such yearly contracts exist at the time when this act shall take effect, shall in all respects continue until the expiration of the yearly term named therein and shall be so continued by the board of education of the city of New York, through the proper school board."

This section applied to the contracts existing at the time between teachers and the local school authorities, and indicated the procedure which the new school authorities were directed to follow in order that the conditions then existing might best be brought under the new régime. Such a provision is lacking in the act of 1900; but, in view of such omission, it is permitted to look to this section of the charter, which is still in force and unamended. From it we can infer what must still be the intention of the Legislature under such circumstances. It is not necessary that conditions then and now be identical. It is sufficient if they be so similar that a fair inference may be drawn from the earlier act as to an intention which is unexpressed in the latter amendment. Construed in this way, it becomes evident that the spirit of the act requires that existing salaries, when above the minimum required by the appropriate schedule, should be continued until the end of such school year, and that the individual be then placed under the proper schedule, provided that his salary be not reduced in so doing. From this reasoning it must follow that the annual increment of $105 may not be claimed as of right until the individual has been placed under one of the schedule grades; for it is clear that on any other theory, if the salary received up to May 3, 1900, was greater than the minimum for the year in accordance with the schedule, defendant would be forced to classify such teacher at a rate of salary much greater than that required by the act, and in such a case there would be, in effect, a direction to the board of education to increase the minimum salary allowed by the act.

If plaintiff's contention be sound and his interpretation of the act be adopted, it would destroy the very object of the legislation-the uniformity of salaries. During his second year of service he would be receiving the salary paid to those of the third year, and would in such manner continue throughout his term of service. Were there many such cases, uniformity would be but a name, and the object of the statute defeated. It was the intention of the Legislature that the increase should, under the schedule, be automatic and take place at the end of each year. According to plaintiff's contention this increase

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would occur on May 3, 1900, irrespective of how long his term of service had been, prior to the enactment. Had he been appointed in April, he would still claim a year's increase in May and another year's increase the following October. But for the clause forbidding reduction, his salary would, for the first year, have been fixed at the minimum, $900. Can it be held that, because his salary could not be reduced, he in consequence became entitled to an increase? If the law says salary cannot be reduced, can the prohibitive words be perverted into meaning that the salary must be increased? And to this point plaintiff's reasoning inevitably leads; for it involves the unavoidable conclusion that, because his first year's salary was protected from reduction, he thereby should receive in one year the annual increments allowed for two. I do not believe the Legislature ever intended such a result, and certainly it should not receive judicial sanction.

Reliance is placed by plaintiff upon the case of Moore v. Board of Education, 121 App. Div. 862, 106 N. Y. Supp. 983, recently decided by the Appellate Division. It has no application. The question passed upon there was the plaintiff's right to a certain grade. Here there is no such question.

Defendant's contention that the plaintiff is estopped from recovery because of having receipted in full for his salary, and that he is barred by the statute of limitations, cannot be upheld. These questions might become important, if bearing upon contractual relations; but where rights are fixed by statute they may not prevail. Judgment for defendant is awarded.

(127 App. Div. 885.)

ROSE v. IMPERIAL ENGINE CO.

(Supreme Court, Appellate Division, Fourth Department. July 7, 1908.) 1. MASTER AND SERVANT-TORTS OF SERVANT-LIABILITY OF MASTER-COMPENSATORY DAMAGES.

A master is liable for compensatory damages for injury caused by the tortious act of a servant committed in the course of the employment, though such acts are malicious.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1230-1232.]

2. SAME-PUNITIVE DAMAGES.

A master is not liable for punitive damages for the tortious acts of a servant, unless he participates in the wrongful act expressly or impliedly by his conduct authorizing it of approving it, but where the wrongful act is either a part, or in pursuance, of a recognized business system authorized by the master, or where the act is the act of an agent or manager having the general management of the particular business in the conduct of which the act complained of was done, the master is in a proper case liable for punitive damages.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1273.]

3. SAME.

Where one having the general management and exclusive control for a corporation of a department of its business in the management of which, and as a part of which management he wrote a libelous letter in the name of and as authorized by the corporation itself, the allowance of punitive damages in an action against the corporation for the libel

would not be set aside as against the evidence on the issue whether he occupied a representative relation to the corporation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1273.]

Williams and Kruse, JJ., dissenting.

Appeal from Trial Term, Steuben County.

Action by Zatter W. Rose against the Imperial Engine Company. From a judgment for plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

See 110 App. Div. 437, 96 N. Y. Supp. 808.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Herendeen & Mandeville (Francis E. Wood, on the brief), for appellant.

Warren J. Cheney, for respondent.

ROBSON, J. That the letter, for the publication of which the jury have awarded plaintiff the sum of $1,200 damages, is libelous. per se, unless it is to be regarded as a privileged communication, is apparent. That the communication is not as matter of law privileged was determined on a prior appeal of this court. 110 App. Div. 437, 96 N. Y. Supp. 808. The jury has found as matter of fact that it was not privileged, and we cannot say that this finding was against the weight of evidence.

Counsel for both parties seem to agree that the evidence appearing in the present record does not materially differ from that presented in the record before the court on the prior appeal, except in regard to what was done by defendant's foreman, Johnson, by way of making inquiries of plaintiff's fellow workmen before he reported to Hollister (who wrote the letter complained of) that the tools, which the letter charged plaintiff with stealing, had been taken by plaintiff. This additional evidence is to some extent contradictory of evidence given. by the same witnesses on the first trial; and apparently was not considered, either by the jury or the trial court, as entitled to much weight, with which apparent conclusion we entirely agree.

This leaves for consideration only appellant's claim that defendant was in no event liable for punitive damages, and that the instruction of the court in reference thereto was error. The charge of the court as to the degree of care which the agent should have used in verifying the facts, upon which he assumed to make the libelous statements contained in the letter, was in the exact language requested by defendant's counsel. The point we are now considering seems, therefore, to narrow to a question as to the extent of defendant's responsibility for the acts of Hollister, its agent. In other words, were they the acts of an agent simply,. or were they in a broader sense the acts of the defendant as an individual entity, or legal person, for which defendant was liable to the same extent as it would have been if Hollister had been himself the corporation? For the tortious acts of a mere servant or subagent of the principal done or committed in the course of his employment, even if wanton or malicious, the principal is, of course, liable to respond in damages, which will fully compensate