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CARRUTHERS v. BD. OF SUPERINTENDENTS OF THE BD. OF EDUC. OF THE CITY OF NEW YORK

302 N.Y. 672 (1951)

In the Matter of Arthur F. Carruthers et al., Respondents, v. Board of Superintendents of the Board of Educacation of the City of New York et al., Appellants.

Court of Appeals of the State of New York.

Decided March 8, 1951

Attorney(s) appearing for the Case

John P. McGrath, Corporation Counsel (Arthur H. Kahn and Seymour B. Quel of counsel), for appellants.

Samuel D. Smoleff for Citizens Union of the City of New York, amicus curiæ, in support of appellants' position.

Shad Polier and Louis H. Pollak for Public Education Association and others, amici curiæ, in support of appellants' position.

A. Mark Levien for respondents.

Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY and FROESSEL, JJ.; Dissent: DESMOND, DYE and FULD, JJ.

Order affirmed, with costs; no opinion.

DESMOND, DYE and FULD, JJ., dissent in the following memorandum:

Section 2520 of the Education Law limits eligibility for the position of director of the bureau of attendance to those in a lower supervisory grade in that bureau. In our view, however, it does not — and cannot constitutionally (N. Y. Const., art. V, § 6) — compel the appointing power — here the board of superintendents of the...

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