The Board of Education of the City of New York having adopted and filed its schedules and schedule conditions for custodial compensation, as directed by the Education Law, must abide by them in view of section 889 of the Education Law which provides that the compensation of custodians may not be reduced below the 1927 schedules and the schedule conditions on file *Page 494 on March 5, 1931. The compensation provided applied not only to schools and school buildings then in existence but also to those to be built thereafter. There is no distinction made in the schedules as to any particular type of heating plant or as to kind of fuel burned therein. The attempted adoption of the so-called "Amendment to Salary Schedules of Custodial Staff" and of the resolution adopted by the Board of Education on June 26, 1940, violates the purposes of, and the results achieved to date through, the Lockwood-Donahue law, the Dick-Rice law, chapter 530 of Laws of 1930 and chapter 540 of Laws of 1931. Moreover, an attempt was made at the legislative session of 1940 to amend the Education Law by granting to the Board of Education the power to fix salaries of certain of its employees, including its custodian engineers, but the Legislature refused such amendment. The changes sought must come about through legislative action and not through the appellant Board. The order should be affirmed.
LOUGHRAN, FINCH, RIPPEY, LEWIS and DESMOND, JJ., concur with LEHMAN, Ch. J.; CONWAY, J., dissents in memorandum.
Orders reversed, etc.