
    The People of the State of New York ex rel. Bridget C. Peixotto, Respondent, v. Board of Education of the City of New York, Appellant.
    First Department,
    February 6, 1914.
    Education — remedy of teacher in public schools of city of Hew York removed for “neglect of duty” — appeal to Commissioner of Education— absence for alleged illness as “neglect of duty.”
    If a school teacher in the public schools of the city of New York, who has been removed on a charge of “neglect of duty.” has any grievance, with respect to the sufficiency of the evidence to sustain the charge, she should appeal to the State Commissioner of Education before invoking the aid of the court.
    
      It seems, that while the board of education of the city of New York is vested with authority to excuse a teacher, absent on the ground of illness, it may, in some circumstances, find that absence for alleged illness constitutes a “neglect of duty” justifying a discharge.
    Appeal by the defendant, the Board of Education of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1913, granting a peremptory writ of mandamus commanding the appellant to reinstate the relator to the position of “teacher in charge ” of public school No. 14 in the borough of The Bronx, or to a corresponding position in any other school in said borough, “ together with all the salary due the said relator from April 22, 1913, the date on which she was suspended, with interest thereon, computed on each monthly installment of salary as it fell due, and without prejudice to her right to apply for salary from the date of her initial absence, to wit, February 3, 1913.”
    
      
      Charles McIntyre [Terence Farley with him on the brief], for the appellant.
    
      Alfred J. Talley, for the respondent.
   Laughlin, J.:

The relator, for about eighteen years prior to the 3d day of February, 1913, was a teacher in the public schools of the city of ¡New York, and on that day she absented herself without leave and remained absent and was suspended by the district superintendent on the 22d day of April, 1913; and in a. communication notifying her of the suspension he stated that he had on that day preferred charges against her to the defendant “for neglect of duty.” On that day he did prefer to the defendant charges against the relator in writing of “ neglect of duty ” and assigned as a reason for the charges the absence of the relator from duty since February 3, 1913, “ for the purpose of bearing a child.” On May 8, 1913, the district superintendent again preferred to the defendant charges against the relator in writing of “neglect of duty,” stating the specifications of the charges to be “That she has been absent from duty without leave since on or about February 3, 1913.” The investigation of the charges was delegated to the committee on elementary schools of the defendant; and on said eighth day of May the chairman of said committee notified the relator in writing of the charges, annexing a copy thereof as .made to the defendant on that day by the district superintendent and further notified her to answer the saíne before the committee on May 27, 1913, at a place and hour specified. At the time and place specified the relator appeared before the committee, and the hearing was adjourned to June 10, 1913, at which time she appeared before the committee with counsel and witnesses were examined under oath. The committee com sisted of seven members, and after the hearing, by a vote of six to one, she was found guilty of the charge of “ neglect of duty,” and the majority report of the committee to the defendant recommended her dismissal. This report was confirmed by the defendant by a vote of twenty-seven to five of its members on the 8th day of October, 1913, which was more than a majority vote of all its members.

It is conceded that the relator took no appeal to the State Commissioner of Education. She made no attempt to review the action of the defendant in dismissing her by a writ of certiorari. She brought this proceeding evidently upon the theory that the defendant was without jurisdiction, on the charges and on the evidence, to remove her.

The relator is a married woman, and her absence from school ' is accounted for on the theory of illness or incapacity preced ing and following the birth of a child on the 7th day of April, 1913. It appears to be broadly contended by her counsel that in no circumstances is the defendant warranted in removing a married woman teacher on account of absence from school through illness incident to hearing a child, no matter how long such illness incapacitates her from performing her duty as a teacher. That is a doctrine, to which we cannot subscribe, for we think that while the defendant is vested with authority to excuse a teacher absent on the ground of illness, it may in some circumstances find that absence for alleged illness constitutes neglect of duty. The statutory provisions authorizing the defendant to remove teachers ate contained in section 1093 of the Greater New York charter (Laws of 1901, chap. 466), and are as follows: “A * * * district superintendent may prefer charges to the board of education against a principal, * * * or against a teacher in any of the schools under their charge, for gross misconduct, insubordination, neglect of duty or general inefficiency. * * * The hoard of education, on receiving notice of such charges, shall immediately proceed to try and determine the case, either in the board or by a committee of its body, and shall fix the penalty or punishment, if any, to he imposed for the offense, and such penalty or punishment shall consist of a fine, suspension for a fixed time without pay, or dismissal; provided, however, that a vote of a majority of all the members of the board of education shall be necessary to impose the penalty of dismissal. The report of any committee holding such trial shall he subject to final action by the board, which may reject, confirm or modify the conclusions of the committee, and the decision .of the board shall be final, except as to matters in relation to which, under the general school laws of the State, an appeal may be taken to the State Superintendent of Public Instruction. * * . *.” The office of State Superintendent of Public Instruction was abolished in 1904, and the office of State Commissioner of Education was created in its place. (Laws of 1904, chap. 40.) Section 880 of the Education Law (Consol. Laws, chap. 16; Laws of 1910, chap. 140) authorizes an appeal to the State Commissioner of. Education by “ any person, conceiving himself aggrieved,” and provides that such appeal “may be made in consequence of any. action: * * * 7.. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools;” and provides that the decision of the Commissioner of Education “in such appeals, * * * shall be,final and conclusive, and not subject to question or review in any place or court whatever.” Section 1068 of the Greater New York charter confers upon the defendant authority to enact by-laws, among other things, for the proper execution of its duties and powers. Pursuant to this authority the defendant adopted certain by-laws. The by-laws do not seem to provide for a leave of absence in advance for existing or anticipated illness. Subdivision 1 of section 44 of the defendant’s by-laws requires a teacher, unable to attend to her duties through illness, to promptly report in writing to the principal the cause and probable duration of her illness. It is conceded in the majority report of the committee, on which she was removed, that “ Immediately upon her initial absence she. sent a communication to the proper authorities, stating that the cause of her absence was some affection of her ears and nose, and accompanied the same .with a physician’s certificate to that effect,”- Subdivision 6 of said by-laws provides for applications “ for excuse with pay for absence caused by personal illness;” and subdivision 5. provides for applications for excuse for absence with pay, and authorizes such an excuse on the ground, among others, of Serious personal illness.” The only provision .in the by-laws relating to the time of applying for excuse for absence appears to be in subdivision 7, which provides, among other things, that No excuse for absence with pay shall be granted unless the application be made within thirty-days from the termination of such absence. No excuse for absence with pay shall be granted in advance.” Subdivisions 2 and 3 of this section provide for leaves of absence without loss of pay for not.more than three days in any school year for the purpose of visiting other schools. Subdivision á provides that absence, other than for a purpose prohibited by another subdivision which is not applicable here, “may be excused without pay by the local school boards, on written application, indorsed by the principal and the district superintendent,” and that no such absence shall be excused without the approval of the board of superintendents. Subdivision 11 authorizes the granting of leave of absence without pay for a period not exceeding .one year “for purposes of study or restoration of health.”' There are other provisions for excuse for absence, but it is quite plain that they are not applicable to the case at bar.

It is contended by the learned counsel for the relator that notwithstanding the fact that a charge was preferred against her of neglect of duty, of which the defendant was by express provision of the statute given jurisdiction and authorized to remove her if sustained, still the court may in this proceeding disregard that charge, which has been sustained by the defendant, and look into the. report of its committee and discern therefrom that the removal was not on the charge of. neglect of duty, but was owing to the fact that she was absent to bear a child. The fallacy of this argument lies in the fact that even though she could not be removed for giving birth to a child, it is possible that the length of her absence for that purpose might be such as to authorize her removal for neglect of duty, notwithstanding the fact that such neglect could not be predicated merely upon the birth of a child.

We are of opinion that the question with respect to the right of the defendant to remove a teacher for necessary absence owing to such illness is not presented for decision, and it would not be proper to express an opinion on that question at this time, for the relator had a legal remedy under the statute by an appeal to the State Commissioner of Education, who was authorized to reverse the determination of the defendant in dismissing her if in his judgment the facts did not warrant it. Of course, if the charge preferred against the relator, upon which she was removed, was not one on which the defendant was authorized to remove her, then the action of the defendant in removing her would be a nullity, and she might be reinstated by mandamus; but that is not this case.. She had no absolute right to hold the position. The Legislature might have provided that teachers might be removed at will without cause assigned, or charges, or a hearing. (People ex rel. Miller v. Peck, 73 App. Div. 89.) But in order to prevent abuse, for political or other purposes, of unrestrained power, the Legislature saw fit in its wisdom to secure teachers against removal excepting upon charges, among others, of neglect of duty. Having been removed on a charge of neglect of duty, if the relator has any grievance, it is with respect to the sufficiency of the evidence to sustain the charge, and on that question she had her statutory remedy by appeal to the State Commissioner of Education (People ex rel. Walrath v. O’Brien, 112 App. Div. 97), which she should have exhausted before invoking the aid of the court. But in so holding we express no opinion on the question as to whether, in the event that her appeal authorized by the statute should be unsuccessful, she could obtain redress by mandamus or other proceeding or action upon the theory that the charge of neglect of duty was colorable merely, and that an examination of the report and evidence would show that she was not removed for neglect of duty. It may be observed, however, that we regard it as exceedingly doubtful whether any view of the evidence, the majority committee report and the action of defendant, would warrant a decision that the relator was not removed on the ground of neglect of duty.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 
      
      Since amd. by Laws of 1913, chap. 688.— [Rep.
     