Levitch v. Board of Education, 216 A.D. 391

Levitch v. Board of Education

216 A.D. 391 | N.Y. App. Div. | 1926

Per Curiam.

In the action brought by the deceased petitioner against the board of education (Levitch v. Board of Education, 212 App. Div. 598) we decided that the petitioner, plaintiff there, was unlawfully removed from her employment as a school teacher. Our *392decision was based upon section 872, subdivision 3, of the Education Law (as added by Laws of 1917, chap. 786) and upon the facts which established, within the language of the statute, that the petitioner Was one who had served the full probationary period and was, therefore, entitled to hold her position during good behavior, and was not removable except for cause after a hearing by the affirmative vote of a majority of the board. The facts on the present appeal require an affirmation of that holding. We think that our dictum, expressed in 212 Appellate Division, 598, to the effect that the determination of the Commissioner of Education adverse to the petitioner was final and conclusive upon her, should not be adhered to. The petitioner’s rights are dependent upon statute, and a wrong construction of such statute by the Commissioner of Education is not binding upon the courts. (Matter of O’Connor v. Emerson, 196 App. Div. 807, 810; Matter of McCarthy v. Board of Education, 106 Misc. 193, 196, Callaghan, J.). The petitioner having died during the pendency of this appeal, and this court, by an order dated January 22,1926, having substituted the executrix of said petitioner as the appellant herein (such facts being conceded by the respondent in its brief at p. 2), we think the case comes within the authority of People ex rel. Fairchild v. Commissioners (105 N. Y. 674), and, therefore, the executrix here is entitled to recover the salary withheld from the petitioner down to the date of her death.

The order denying the motion for a peremptory mandamus order should be reversed upon the law and the facts, with costs, and the motion for a peremptory mandamus order should be granted, with costs.

Kelly, P. J., Rich, Jaycox, Kapper and Lazansky, JJ., concur.

Order denying motion for peremptory mandamus order reversed upon the law and the facts, with costs, and motion for peremptory mandamus order granted, with ten dollars costs. Settle order on notice before Mr. Justice Kapper. ”