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MARK v. BD. OF HIGHER EDUC. OF CITY OF N. Y.

303 N.Y. 154 (1951)

Irving Mark et al., Appellants, v. Board of Higher Education of the City of New York, Respondent.

Court of Appeals of the State of New York.

Decided July 11, 1951

Attorney(s) appearing for the Case

Benjamin M. Zelman for appellants.

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

LEWIS, CONWAY and DYE, JJ., concur with FROESSEL, J.; LOUGHRAN, Ch. J., DESMOND and FULD, JJ., dissent.

FROESSEL, J.

This declaratory judgment action involves the construction of the "transfer clause" of former section 889, subdivision b, of the Education Law (L. 1943, ch. 403, known as the Moffat Law), which, with later amendments not here relevant, is now section 3104 of the Education Law. That section, as effective April 8, 1943, so far as here pertinent, provided: "In any public institution of higher learning...

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