
    Charles R. O’Connor, Appellant, v. Marshal E. Francis, as Sole Trustee of School District No. 4 of the Town of Hunter, Greene County, N. Y., Respondent.
    
      Contract for the employment of a teaJcher lacking a certificate of qualification — a subsequent indorsement by the commissioner of a certificate granted in another district — the annual report of the State Superintendent of Public Instruction is not evidence of a rule established by him.
    
    Where a contract made by a trustee of a school district for the employment of a teacher is invalid because the person employed does not hold a certificate of qualification issued to him by the school commissioner of the district in which he is thus sought to be employed, or other sufficient certificate, as required by section 38 of title 7 of the Consolidated School Law (Laws of 1894, chap. 556), the fact that after the execution of the contract and before the time fixed for the commencement of the performance thereof, the school commissioner of such district, in pursuance of a rule promulgated by the State Superintendent of Public Instruction, indorses as valid within his district an unexpired certificate of qualification issued to such teacher by the school commissioner of another district, does not render the contract enforcible, in the absence of evidence that both parties consented to waive the original infirmity therein.
    Semble, that the existence of a rule of the State Superintendent of Public Instruction cannot be established by placing in evidence an annual printed report of the superintendent purporting to contain such rule.
    Appeal by the plaintiff, Charles R. O’Connor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 29th day of June, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Greene Trial Term.
    
      Edward O’ Oonnor, for the appellant.
    
      Frank H. Osborn, for the respondent.
   Landon, J.:

The plaintiff seeks to recover damages for the breach of a contract, in writing, made August 3, 1896, between himself and the defendant’s predecessor as sole trustee of school district No. 4, town of Hunter, in the county of Greene, whereby the parties agreed that plaintiff should teach the public school in said district for forty consecutive weeks, commencing September 7, 1896, for thirteen dollars and seventy-five cents per week, payable at the end of each thirty days. After the contract was made, and before the term of plaintiff’s employment began, the defendant was duly elected sole, trustee of said district, and assumed the duties of the office. The' defendant refused to recognize the contract, and prevented the plaintiff’s performance. The justification urged by the defendant and sustained by the trial court was that, at the time the contract was made, the plaintiff was not a duly qualified teacher.

The Consolidated School Law (Laws of 1894, chap. 556, tit. 7, § 47) provides that the trustee or trustees of every school district shall have power “ to contract with, and employ, all teachers in the district school or schools, as are qualified under the provisions of this act.” Section 38 of the same title declares that “No teacher is qualified, within the meaning of this act, who does not possess an unannulled diploma granted by a State Normal school, or an unrevoked and unannulled certificate of qualification given by the Superintendent of Public Instruction, or an unexpired certificate of qualication given by the school commissioner within whose district such teacher is employed.” Section 47, above mentioned, further provides that “Any person employed' in disregard of the foregoing' provisions, shall have no claim for wages against the district, but may enforce the specific Contract made against the trustee or trustees consenting to such employment as individuals.”

The plaintiff, at the date of such contract, had an unexpired certificate of qualification given by the school commissioner of the second district of the county of Delaware, and no other. After the contract, and about ten days before: the 7th of September, 1896, the date for the commencement of the plaintiff’s service, the school commissioner in the first school commissioner district of the county of Greene, that being the district in which this contract was made and said school- district No. 4 . was situated, indorsed such certificate as valid within his school commissioner district.

The statute does not expressly authorize such indorsement, but the plaintiff offered to read in evidence from volume 1, page 619, of the printed report for the year ending July 31,1896, of the State Superintendent of Public Instruction to the Legislature, a rule promulgated by the Superintendent directing a school commissioner to “ indorse for the full period for which they are valid when presented to him for indorsement, first and second grade certificates (this was .a second grade certifícate) issued by any other school commissioner in the State, unless a valid reason exists for withholding such indorsement. Such certificates, when properly indorsed, shall be valid in the school commissioner district over which the school commissioner who indorsed them has jurisdiction.”

The court sustained the defendant’s objection to the evidence upon the ground that it was not duly authenticated.

'We think the ruling was right; but- had the rule of the Superintendent been read in evidence it would remain true that, at the time the contract was made, the plaintiff was not a duly licensed teacher for the district in Greene county, and, therefore, the trustee had no authority to make the contract with him. (Blandon v. Moses, 29 Hun, 606; Gillis v. Space, 63 Barb. 177.)

The plaintiff must rest upon the force of the contract when made, and it was then invalid. It would need the assent, express or implied, of both parties after the disqualification of both parties was removed to give it validity, and that assent is absent.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  