Opinion
Argued April 20, 1944
Decided May 25, 1944
Appeal from the Supreme Court, Appellate Division, First Department, STEUER, J.
A. Mark Levien for appellant. Ignatius M. Wilkinson, Corporation Counsel ( Joseph G. De Vito, James Hall Prothero and Nicholas Bucci of counsel), for respondent.
It appears conclusively from the allegations of the complaint and of the answer that the plaintiff in 1929 was appointed to service in the scheduled position of Instructor for the academic year beginning September 1, 1929, and that his appointment to the same position was renewed from year to year thereafter until he was given permanent tenure. The provisions of section 889 of the Education Law that compensation and salaries "shall be not less than the salaries and salary increments fixed by the schedules and schedule conditions * * * on file in the office of the state commissioner of education on the fifth day of March, nineteen hundred thirty-one", apply to persons holding such positions by successive appointments for single scholastic years without right of permanent tenure, as well as to persons enjoying permanent tenure. That is true even though the appointment for each year be denominated an appointment as "temporary Instructor".
The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division.
The question certified should be answered in the negative.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur; THACHER, J., taking no part.
Ordered accordingly.