
    In the Matter of the Application of Silvio A. Lanza, Respondent, for an Order of Mandamus against George J. Ryan, as President, Samuel Stern, Vice-President, William J. Weber and Others, as Members of the Board of Education of the City of New York; Henry Levy, Chairman, Edward S, Canning, Secretary, William Hannig and Others, as Members of the Board of Examiners of the Board of Education of the City of New York and the Board of Superintendents; William J. O'Shea, Superintendent of Schools, Chairman, Appellants.
   Proceeding to compel the issuance to petitioner of a license as teacher of physics in the high schools of the city of New York. Peremptory order of mandamus reversed on the facts and a new trial granted, with costs to appellants to abide the event. As was the case when this proceeding was before this court upon a previous appeal (242 App. Div. 711; and see 228 id. 632; Id. 653; and 253 N. Y. 581), the only issue of fact in this case was: Was petitioner a substitute teacher of physics or was he a laboratory assistant? Upon the third trial of that issue of fact, now under review, no testimony was taken. The trial was had upon a stipulated record (a) of the papers on appeal containing the record of the second trial (242 App. Div. 711) and in addition (b) upon the stenographic record of the first trial and the exhibits thereon, (c) section 41 of the by-laws of the Board of Education as that section existed in 1928, and (d) Exhibit X, consisting of certain reports of the Stuyvesant High School. The third trial was before the court without a jury. Implicit in the determination of the trial justice in favor of the petitioner is a finding of fact that during the relevant period of petitioner’s service at the Stuyvesant High School he was a substitute teacher of physics. In our opinion that finding, upon the record now under review, is against the weight of evidence, which is to the effect that his service was rendered in the position of laboratory assistant. Therefore, he was not entitled to any credit for services rendered in teaching, in order to procure his license as a teacher of physics. (Ibid.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur. [See post, p. 1116; 260 App. Div. 801.]  