94 N.Y.S. 180 | N.Y. App. Div. | 1905
The action was brought to recover salary alleged by plaintiff to be due and owing him for services rendered as a teacher in the public schools of Greater New York from July 1, 1898, to December 26, 1901, when this action was commenced, and this appeal is from a judgment entered therein by direction of the court and from the order denying defendant’s motion for a new trial. On January 23, 1872, the plaintiff received a State normal school certificate, which was indorsed by the Superintendent of Public Instruction, which was never revoked or annulled. This certificate is made by law conclusive evidence of his qualification and ability to teach any common school in the State (Laws of 1864, chap. 555, tit. 1, § 15, as amd. by Laws of 1875, chap. 567, and Laws of 1888, chap. 331; revised by Consol. School Law [Laws of 1894, chap. 556], tit. 1, § 10), and vested in him the right to teach, upon being properly employed.
In 1890 he served as a teacher and principal of a common school in the town of New Utrecht, Kings county, under an employment for one year, evidenced by the written memorandum required by law, which employment was continued from year to year.
July 1, 1894, the toivn of New Utrecht became part of the city of Brooklyn under the provisions of chapter 451 of the Laws of 1894, section 13 of which provided : “ The public school teachers in the public schools of the district hereby annexed at the time of the taking effect of this act, holding certificates of qualifications, granted in accordance with the laws of the State of New York, shall not be subject to further examination while said certificates are in full force, unless a teacher desires an examination- for the purpose of obtaining a certificate of a higher grade.” The plaintiff continued as a principal and taught the school after, as he had before, the stat
On June 18, 1897, A local committee, apparently acting in conformity with this resolution, submitted- to the committee on teachers of the board of education certain.changes in the teachers of school No. 105 (theschool inwhich-the plaintiff was then principal), which appointed plaintiff as head of the department, with the grade of branch principal, and assignment to classes 7 and 8 G. M., stating the date of commencement of service as September 13, 1897, and that both service- and pay-ceased on June 30, 1898. Tins report was indorsed “ Regular as to Certificates, William H. Maxwell, Superintendent. J. Weir, Jr.,” the latter being a member of the committee on teachers. The committee on teachers subsequently reported to the board, of education, at a meeting held June 28, 1897, under the heading “ Appointments for Specified Time,” "School No. 105; Name of Teacher, Frank M. Bogert (the plaintiff); Grade, Branch Principal; Date, Sept. 13 to June 30.”
On January 1; 1898, the city of Brooklyn was made part of the city of New York, by the provisions of chapter 378 of the Laws of 1897. By subdivision 2 of section 1061 of this statute the board of -education of the city of Brooklyn was made the “ school board ” of the borough of Brooklyn and its members, were continued in office until the expiration of the terms for which they were appointed, when their successors were to be appointed by the mayor. Their powers, duties and functions, as such board of education, continued pursuant to said subdivision until February 1,
I cannot concur in the contention of counsel for appellant, that respondent was a person holding “ office ” for a “ definite ” term at the time the original charter of Greater New York became operative. The respondent had been a principal and teacher in school No. 105 in the city of Brooklyn from July 1, 1894, when the town of New Utrecht was added to that city, until July 1, 1898. From July 1 to September 1, 1894, he was serving under the contract made with the trustees of the town on June 1, 1893, which became operative September 1, 1893, and remained in force, by its terms, for one year. Thereafter he had no contract, understanding or agreement with the board of education of the city of Brooklyn as to the term of service or any of the details connected with his service, and he is not shown to have had any knowledge of the proceedings of the committees of the board of education in 1897. He was not, therefore, at the time the charter went into effect, employed for a “ definite ” term nor was he holding “ office ” for a “ definite ” term
It is not pretended by appellant that charges were ever preferred or any proceedings taken under the provisions of these sections to
The learned trial justice adopted the proper measure of damages. The appellant and its officers, through an erroneous construction of the statute, assumed to exercise a power which they did not possess, and the disposition of the case by the trial court was correct.
The judgment and order appealed from should, therefore, be affirmed, with costs.
Hirsohberg, P. J., Bartlett, Woodward and Hiller, JJ., concurred.
Judgment and order affirmed, with costs.