Opinion
March 20, 1950.
Present — Carswell, Acting P.J., Johnston, Sneed, Wenzel and MacCrate, JJ. Settle order on notice.
In this article 78 proceeding to compel the board of education to pay 562 petitioners for extra services rendered in 1942, 1943, and 1944 morning summer playground sessions, a final order was entered dismissing the petition on the merits, and petitioners appeal. Final order, on reargument, modified on the law and the facts (1) by inserting after the word "respects", in the first ordering paragraph, the words "as to the 62 petitioners listed in Exhibit 6 annexed to the answer, and as to the 7 petitioners listed in Exhibit 7 annexed to the answer for the year 1944"; (2) by striking out the balance of the order; (3) by severing the proceeding as to the 151 petitioners listed in Exhibit 5 annexed to the answer, and referring that portion of the proceeding to the same Official Referee who is to hear and determine whether the 80 petitioners involved in Matter of Earle v. Clauson ( ante, p. 1023) were paid, to hear and determine whether the 151 petitioners involved in this proceeding were paid for the extra services involved herein; (4) by granting the petition as to petitioner Parsons only for 30 days in 1942; (5) by granting the petition as to the remaining 341 petitioners. As so modified, the order is unanimously affirmed, with one bill of $50 costs and disbursements to petitioners. In our opinion, the 1925 extra services schedule provides a separate payment for extra services rendered in connection with each session of the morning and afternoon summer playgrounds. Our reasons may be summarized as follows: (1) The auditor for the board admits that the notation in the schedule that "Space used continuously, as above, to be paid for but once regardless of sessions involved" was not included in the provisions with reference to the continuous use of playgrounds in the summer vacation service; (2) the provision "Rate per session", to be given full effect, must mean rate for each session, whether continuous or not; (3) if the interpretation of the board were correct, there would be considerable doubt as to how much the allowance would be for the use of an outside playground from noon to 5:00 P.M., if it were also thereafter used after 5:00 P.M., in view of the fact that there is a $2 allowance for the session before 5:00 P.M., and an allowance of $3.50 for the session after 5:00 P.M., yet the sessions are continuous; (4) if only the building were used in the morning session, and the playground used in the afternoon session, if the board were correct, only one allowance would be made for both the use of the indoor space and the outdoor playground because the sessions were continuous, even though there was the extra cleaning of different space to be done. (See, also, Matter of Earle v. Clauson, ante, p. 1023, decided herewith.)