56 A.D. 368 | N.Y. App. Div. | 1900
The appellant applied to the court below for a peremptory writ of mandamus requiring the respondents to reinstate her as a teacher of cooking in the public schools of the city of New' York. She alleges in her affidavit upon which this motion was made that “ In May and June of the year 1897 I was duly examined as an applicant for a cooking license in the public schools of said city, and having been found in all respects duly qualified, was duly licensed to
In opposition of this motion there was an affidavit submitted by John Jasper, the borough superintendent of schools, which-says that on June 4,1897, the relator was licensed to teach cooking in the public schools of the city of Hew York; that the said license was for a limited period of six months and was subsequently renewed for an additional six months, and subsequently, upon the nomination of the affiant, .the appellant was, with several other persons, appointed by the board of education as special teacher of cooking, to be assigned to schools by the committee on instruction on the recommendation of the city superintendent. The resolution of the board by which she was appointed contains this clause: “ Said appointments to take effect from commencement of service and to continue until October 1st, 1898.” Ho copy of the license to teach is annexed to the mov
When this license was granted the. provisions of the Consolidation Act (Laws of 1882, chap. 410) were in force, and the appellant now contends that under the case of Steinson v. Board of Education (49 App. Div. 143) the board had no power to issue a limited license. I cannot see that that case is an authority for such a proposition. Mr. Justice Rumsey, who delivered the prevailing opinion, which was concurred in by Mr. Justice McLaughlin, speaking of the power of the city superintendent prior to the new charter of the city of New York, says : “ He may issue a provisional license, good for six months, which must be signed also by the two inspectors. He can issue a permanent license to be signed in the same way. No power is given to him to renew a provisional license from time to time, or to issue any license whatever, except one signed by two inspectors and after an examination as prescribed by section 1040 of the Consolidation Act.” There was no evidence before the court below that this appellant ever had such a license as is here prescribed, except the allegation that a temporary license for six months was granted which, having been granted on June 4, 1897, expired on Decem-t her fourth of -the same year. As was said by Mr. Justice Rumsey in the case before cited, speaking of the power of the superintendent, “ He may, undoubtedly, grant a provisional license for six months, but at the end of that time he is bound to refuse a further license, or upon proper examination to grant a permanent license.” There was no evidence before the court below that any permanent license was .ever granted to the appellant, and applying the rule" as stated by Mr. Justice Rumsey, she had no-license to teach which was valid after December 7, 1897. Mr. Justice Rumsey put the right" of the plaintiff to recover in the Steinson case upon the ground that the plaintiff in that case had a certificate from the State Superintendent of Public Instruction, which' by statute was conclusive evidence that the person to whom it was granted was qualified by moral character, learning and ability to teach in any common school of the State, irrespective of the fact that the plaintiff failed to prove that he had a city license. It is true that Mr.
The appellant, therefore, having no license from the city, was under this provision of the statute precluded from teaching in any public school in the city of New York; and having no license, it was the duty of the city superintendent of schools to refuse to continue her in the position.
It also appeared that the appellant did not receive a permanent appointment as a teacher. Her appointment was to take effect from the commencement of the service and to continue until October 1, 1898. She accepted an employment under this condition. Off October 1, 1898, when the appellant’s employment came to an end,
It follows that the order appealed from was right and should be affirmed, with ten dollars costs and disbursements.
Yan Brunt, P. J., Rumsey, Patterson and Hatch, JJ., concurred.
Order affirmed, with ten’ dollars costs and disbursements.