111 N.Y.S. 337 | N.Y. App. Div. | 1908
The plaintiff sues to recover the difference between the. salary-paid him by the defendant from May 3, 1900, when chapter 751 of the Laws of 1900 went into effect, to March 1, 1906, and the minimum salary prescribed by that act
' The plaintiff was a teacher in the city of Brooklyn at the time of consolidation and held a Grade A license “to teach a common school in the said city as a teacher of Latin and Geometry in Manual Training High School.” A classification of teachers was adopted by resolution of the board of education of the city of Hew York for the borough of Brooklyn on the 27th day of June, 1899, and the plaintiff was classified under the heading, “ Manual Training High School, Teachers.” Said resolution also contained the following provision : “ Teachers of their respective subjects designated to act temporarily as head teachers, Irving A. Hazen, Department of Foreign Languages.” It is conceded that the plaintiff has performed the duties of a head teacher since thus temporarily assign'ed. After the passage of said chapter 751 of the Laws of 1900 the plaintiff filed with the board of education a statement which was evidently required of all teachers for the purpose of fixing their status under said statute. In that statement lie said that his present position was that of a regular teacher of Latin and geometry in Manual Training High School, borough of Brooklyn, and that he claimed a salary of $2,180 per annum under said law. Subsequently, and on December 15, 1902, he filed an application for a" First Assistant’s “ License to teach classical languages in high school,’’ and in that application stated that his present position was “ teacher of
The plaintiff contends that he was eligible to appointment as head teacher by virtue of the Grade A license held by him at the time of consolidation, and that the by-law quoted supra was inoperative to deprive him of eligibility for such appointment by reason of section 1101 of the revised charter, which, so far as material, provides as follows: “ All licenses to teach or certificates of qualifications for teaching granted by the superintendent of public instruction of the city of Brooklyn, or by authority of the board of education of the said city oi Brooklyn, prior to February
But even assuming that the plaintiff established his eligibility for the position of head of the -department of foreign languages in the Manual Training High School, the proof utterly fails to show an appointment or promotion to that position. On the contrary, the resolution which he says had that effect classified him as a teacher, and provided that all teachers of the respective subjects were designated to act temporarily as head teachers. We have already held that a designation or assignment to act temporarily in a given position is not an appointment to that position. (Hoefling v. Board of Education, 120 App. Div. 545.) The plaintiff contends that the temporary assignment was void, and that as the board must be presumed to have intended a valid act it must follow that it intended to make a permanent appointment• but that is a non sequitur. It is evident that both he and the board understood that he was not entitled to the position of head teacher until he obtained a first assistant’s license, and under that understanding he was temporarily designated to act. He" was quite willing to accept the status of a regular teacher at the salary paid him and to perform the duties of a head teacher, thus keeping the latter position open to him until he became eligible, and under that understanding he acted for six years. Even though he had been eligible to appointment as head teacher, the board was not obliged to appoint him, and it is a novel proposition that an irregular temporary assignment can have the effect of a permanent appointment.
Oonsolidation and the changes in the statute applicable to the department of education doubtless necessitated a readjustment of the teaching force. It is but reasonable to suppose that during the process of readjustment many teachers were called upon temporarily to perform the duties of positions without being permanently assigned to them, and perhaps without even being eligible to such assignment. Like the plaintiff they were doubtless quite willing to perform such duties for the salary' of the position to which they
The-judgment should be affirmed.
"Woodward, Jenks, Hooker and Gaynor, JJ., concurred.
'Judgment affirmed, with costs. .
See § 4, amdg. Laws of 1897, chap. 378, § 1091, as amd. by Laws of 1899, . chap. 417.— [Rep.