37 N.Y.S. 109 | N.Y. Sup. Ct. | 1896
The plaintiff seeks to enjoin the defendant, •the board of education of the city of- Brooklyn, from sum- ' marily dismissing him from his place as teacher in the public schools of the city of Brooklyn, claiming that he may not be dismissed except for cause found after a trial by the board upon charges. He makes this contention upon two stated grounds, viz., first, that he is an honorably discharged soldier of the war of the rebellion, and, second, that the general school laws of the state entitle all teachers in the common . schools to the protection of such a trial.
1. There is a general statute that no honorably discharged soldier or sailor of the war of the rebellion “ holding a position by appointment in, any city or county,” and receiving a salary from such city or county,” shall be removed therefrom “ except for cause shown after a hearing had.” Laws of 1892, ch. 577. This statute expressly excepts positions having a definite term fixed by law, and relates only to positions over which the power of removal may be exercised at pleasure. It also needs to he observed that it relates in terms only to' positions in cities and counties. It does not cover appointees under the state government, nor in towns, villages or school districts. The plaintiff is ' concededly not holding a county position. If, therefore, he is not holding a position by appointment in the city of Brooklyn, viz., under the city government, and receiving a salary from the city, he does not come under the protection of the . veteran statute. He is an employee of the board of education. It is not a part of the corporation of the city of Brooklyn, hut is itself a local school corporation, like every hoard of school district trustees throughout the state (General Corporation Law, sec. 3), and is like every such board an integral
The plaintiff being an. employee.of the board of education, . and it not being part of the corporation of the city of ■ Brooklyn, as I conclude from the foregoing, the veteran statute affords him no protection. Moreover, the plaintiff- does
2. In respect of the plaintiff’s claim that the general school laws of "the state entitle him to a' trial, this is the only provision upon the subject, viz.: “ Nor shall any teacher be dismissed in the course of a term of employment, -except for reasons which, if appealed to the superintendent of public instruction, shall be held to be sufficient cause for such dismissal.” “ Consolidated School Law,” Laws of 1894, chap. 556, tit. 7, art. 6, § 47. This language does not give to the teacher - the right to a trial. People ex rel. Keech v. Thompson, 94 N. Y. 451; People ex rel. Fonda v. Morton, 148 id. 156. The relation between the plaintiff and the board of education is simply the contract one of employer and employee (“ Consolidated School Law,” title 7, art. 6, § 47), and for a breach of his contract of service by a dismissal without cause the board would be liable to him in an action for damages. Gillis v. Space, 63 Barb. 177; Wait v. Ray, 67 N. Y. 36. The by-laws of the board provide for “annual salaries” and “ yearly salaries ” for teachers (art. 11), and they are part of , the plaintiff’s contract of employment. People ex rel. Hoffman v. Board of Education, 143 N. Y. 65. But as it has recently been declared the law- of this state that a hiring at a year’s salary is only a hiring at will (Martin v. Insurance Co., 148 N. Y. 117), that would seem to be the plaintiff’s case, unless the requirement of the general school law that teachers be employed for a term, read into and with the said by-laws, saves him.
The motion to continue the temporary injunction is denied.
Motion denied.