212 A.D. 598 | N.Y. App. Div. | 1925
In this case we reach the following conclusions:
1. We think the learned justice at Special Term was right in denying plaintiff’s motion for -summary judgment. The answer presented issues upon which defendant was entitled to a trial.
2. As to the dismissal of the amended complaint upon the ground that it did not state a cause of action: While we disagree with the learned Special Term in its conclusion that the plaintiff could be removed from her employment except for cause and after a hearing (Education Law, § 872, subd. 3), we think plaintiff could not maintain this action for salary for a period during which she rendered no services, being prevented from doing so by the alleged illegal action of defendant, without first procuring reinstatement in her position. (Hagan v. City of Brooklyn, 126 N. Y. 643; Walters v. City of New York, 119 App. Div. 464; affd., 190 N. Y. 375; Thomson v. Board of Education, 201 id. 457.) We are also of opinion that the plaintiff having appealed from her discharge to the Commissioner of Education, his determination adverse to her upon the question here involved, until set aside, is final and conclusive upon her. (Bullock v. Cooley, 225 N. Y. 566; Barringer v. Powell, 230 id. 37.)
The judgment and order appealed from should be affirmed, with costs.
Present—Kelly, P. J., Manning, Kelby, Young and Kapper, JJ.
Judgment and order unanimously affirmed, with costs.
