
    Frank M. Bogert, Respondent, v. The Board of Education of the City of New York, Appellant.
    
      Teacher in a publie school in the city of Brooklyn at the time of the consolidation of that cily with the city of Greater Hew York—protected from summary, removal by section 1114 of the-Greater Hew York charter — who is not a person holding “ office” for a “definite” term.
    
    In 1890 one Bogert, who held a certificate from the Superintendent of Public Instruction conclusively evidencing his ability to teach in any common school in the State of Mew York, and which certificate had never been revoked, was employed as the teacher and principal of a common.school in the town of New Utrecht, Kings county, under a written contract for one year. Such employment was continued from year' to year and was in force in July, 1894, when the town of New Utrecht was incorporated into the- city of Brooklyn.
    After sueli incorporation. Bogert continued'as principal of the school in question. The school authorities of the city of Brooklyn took no action affecting him or his position until January 8, 1897, when the board of education of that city passed a resolution authorizing the superintendent of public instruction to grant Bogert a teacher’s certificate for a term not longer than, one year, hut which could be renewed from year to year provided the work of the holder continued satisfactory.
    In June, 1897, the committee on teachers reported to the board of education, under the heading ‘‘Appointments for Specified Time,” the following: “ School No. 105' Name of Teacher, Frank M. Bogert (the plaintiff) ; Grade, Branch Principal; Date; Sept. 13 to June 30.” .Bogert was not shown to have had any knowledge of the proceedings of the board of education in 1897.
    January 1, 1898, the city of Brooklyn was incorporated into the greater city of New York pursuant to the Greater New York charter (Laws of 1897, chap. 378). January 25; 1898, the hoard of education of the city of Brooklyn, whose powers were continued until February 1, 1898, adojited a resolution authorizing the superintendent of public instruction to grant a special permanent certificate, equivalent to head of department certificates, to Bogert. Bogert continued to serve as principal and teacher in the school in question until June 30, 1898, when he was summarily removed.
    
      Held, that Bogert, being a teacher in the public school system of. the city of Brooklyn at the time when the Greater New York charter took effect, was protected from summary removal by section 1114 of the Greater New York charter, irrespective of the term for which he had been employed in the Brooklyn public school system at the time the Greater New York charter took effect;
    That Bogert was not a person holding "‘ office” for a ''definite ” term within the meaning of those words as used in section 1117 of the Greater New York charter.
    Appeal by the defendant, The Board of Education of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of June, 1904, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 8th day of April, 1904, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      'William Hughes [James D. Bell and John J. Delany with him on the brief], for the appellant.
    
      Lavinia Lally, for the respondent.
   Rich, J.:

The action was brought to recover salary alleged by plaintiff to be due and owing him for services rendered as a teacher in the public schools of Greater New York from July 1, 1898, to December 26, 1901, when this action was commenced, and this appeal is from a judgment entered therein by direction of the court and from the order denying defendant’s motion for a new trial. On January 23, 1872, the plaintiff received a State normal school certificate, which was indorsed by the Superintendent of Public Instruction, which was never revoked or annulled. This certificate is made by law conclusive evidence of his qualification and ability to teach any common school in the State (Laws of 1864, chap. 555, tit. 1, § 15, as amd. by Laws of 1875, chap. 567, and Laws of 1888, chap. 331; revised by Consol. School Law [Laws of 1894, chap. 556], tit. 1, § 10), and vested in him the right to teach, upon being properly employed.

In 1890 he served as a teacher and principal of a common school in the town of New Utrecht, Kings county, under an employment for one year, evidenced by the written memorandum required by law, which employment was continued from year to year.

July 1, 1894, the toivn of New Utrecht became part of the city of Brooklyn under the provisions of chapter 451 of the Laws of 1894, section 13 of which provided : “ The public school teachers in the public schools of the district hereby annexed at the time of the taking effect of this act, holding certificates of qualifications, granted in accordance with the laws of the State of New York, shall not be subject to further examination while said certificates are in full force, unless a teacher desires an examination- for the purpose of obtaining a certificate of a higher grade.” The plaintiff continued as a principal and taught the school after, as he had before, the statnte took effect, with no act on the part of the school authorities of Brooklyn affecting or in any manner relating to him or his position until- January 8,-1897, when the board of education passed a resolution authorizing the superintendent of public instruction to grant to plaintiff (among other teachers) a certificate, equivalent to head of department A certificates, in accordance with article 12, section 4, of the by-laws, such certificate to be issued for a term not longer than one year, but which could be renewed from -year to year, provided the work of the holder continued to be satisfactory and' he was retained in the service of the board of education. Such certificates, by the terms of the resolution, entitled the holders to the maximum pay for heads of departments, but “ shall not entitle them to act as principals of schools outside the Twenty-ninth, Thirtieth, ■ Thirty-first and Thirty-second Wards.”

On June 18, 1897, A local committee, apparently acting in conformity with this resolution, submitted- to the committee on teachers of the board of education certain.changes in the teachers of school No. 105 (theschool inwhich-the plaintiff was then principal), which appointed plaintiff as head of the department, with the grade of branch principal, and assignment to classes 7 and 8 G. M., stating the date of commencement of service as September 13, 1897, and that both service- and pay-ceased on June 30, 1898. Tins report was indorsed Regular as to Certificates, William H. Maxwell, Superintendent. J. Weir, Jr.,” the latter being a member of the committee on teachers. The committee on teachers subsequently reported to the board, of education, at a meeting held June 28, 1897, under the heading “ Appointments for Specified Time,” "School No. 105; Name of Teacher, Frank M. Bogert (the plaintiff); Grade, Branch Principal; Date, Sept. 13 to June 30.”

On January 1; 1898, the city of Brooklyn was made part of the city of New York, by the provisions of chapter 378 of the Laws of 1897. By subdivision 2 of section 1061 of this statute the board of -education of the city of Brooklyn was made the school board ” of the borough of Brooklyn and its members, were continued in office until the expiration of the terms for which they were appointed, when their successors were to be appointed by the mayor. Their powers, duties and functions, as such board of education, continued pursuant to said subdivision until February 1, 1898, when they terminated, and thereafter such board possessed •only the powers, duties and functions vested in the “school board ” by the statute. On January 25, 1898, while it yet was authorized to exercise the powers and functions vested in said board of education of the city of Brooklyn, it adopted a resolution in the following language: “ Resolved, That the Superintendent of Public Instruction be and hereby is authorized to grant to James S. Morey, John F. Harris, Frank M. Bogert (plaintiff), and Moses Becker, Jr., special permanent certificates equivalent to Head of Department certificates. Such certificates shall entitle the holders to receive the maximum pay* for heads of department, but shall not entitle them to act as principals of schools having more than nine classes nor to be transferred to schools outside the Twenty-ninth, Thirtieth, Thirty-first and Thirty-second Wards.” Plaintiff continued in the' public school service, as principal and teacher of school No. 105, until June 30,1898, when he received a notice from the city superintendent of schools of the city of New York that his services would be no longer required and that he was ineligible to any position in the schools of that city, and he was not thereafter permitted to serve as the head of a department, principal, or to teach except at irregular intervals, as a substitute when vacancies existed.

I cannot concur in the contention of counsel for appellant, that respondent was a person holding “ office ” for a “ definite ” term at the time the original charter of Greater New York became operative. The respondent had been a principal and teacher in school No. 105 in the city of Brooklyn from July 1, 1894, when the town of New Utrecht was added to that city, until July 1, 1898. From July 1 to September 1, 1894, he was serving under the contract made with the trustees of the town on June 1, 1893, which became operative September 1, 1893, and remained in force, by its terms, for one year. Thereafter he had no contract, understanding or agreement with the board of education of the city of Brooklyn as to the term of service or any of the details connected with his service, and he is not shown to have had any knowledge of the proceedings of the committees of the board of education in 1897. He was not, therefore, at the time the charter went into effect, employed for a “ definite ” term nor was he holding “ office ” for a “ definite ” term within the meaning of those words as used in section 1117 of the original charter. He was an employee merely, not an officer.; his term of employment was not fixed or definite and not within the section limitation. If appellant’s claim, that respondent’s appointment by the board of education as branch principal of school No. 105 for a period covering one school year, from September 13,1897,. to June 30, 1898, was valid and binding upon the respondent and was in no manner changed or affected by his permanent appointment on January 25, 1898, as the-head of a department and entitled. to act as the principal of a school not having more than niné classes, in the named wards, in which class and grade he was, at the time of such appointment, teaching and serving ás the principal, were com ceded, it would not aid the contention of the appellant, for the-reason that when the original charter was -enacted and when it. became operative, the respondent concededly was a teacher “ in tlm public school system” of the city of Brooklyn which became “part of The City.of New York” by the provisions of the charter; and by section 1117 was continued in his position as principal and teacher of school No. 105, entitled to the compensation for his services he was-then receiving or that might thereafter be provided for such position,, and could not be removed or his services dispensed with except upon preferred and established charges of gross misconduct, insubordination, neglect of duty or general inefficiency,” in the manner provided by section 1114. It was entirely immaterial in what manner or for what term the respondent was employed, at the time the-charter took effect. Its only requirement, to entitle the respondent, to its protection from summary removal, was-that he should then be a teacher in the public school system of the city of Brooklyn. The distinction between the tenure of office of teachers, and persons not teachers, under the provisions of the section, is pointed out by the Court of Appeals in People ex rel. Callahan v. Bd. Education (174 N. Y. 174, 175), and the further conclusion reached by that court, that the sections cited had for their object the permanent protection of teachers in the tenure of their positions unless removed for cause after a trial upon preferred charges, commends itself to us as being the only proper construction that can be given-this statute.

It is not pretended by appellant that charges were ever preferred or any proceedings taken under the provisions of these sections to remove the respondent, or that any reason for such action existed. The statute which transferred respondent to the public school service of the city of Hew York, as a teacher, protected him in the tenure of his position, and prohibited his removal unless upon charges. The respondent held a diploma issued by the State Formal School to him, as a graduate, indorsed by the Superintendent of Public Instruction, which, until revoked or annulled, conclusively established his fitness and qualifications as a teacher, under which he had taught for more than twenty-five years, both as. teacher and principal, four years of which time had been spent in one school in the city of Brooklyn, which could not be limited in the absence of clear statutory authority (Steinson v. Board of Education, 49 App. Div. 150), and he was not subject to further examination while his certificate was in full force and unrevoked. (Laws of 1894, chap. 451, ,§ 13.)

The learned trial justice adopted the proper measure of damages. The appellant and its officers, through an erroneous construction of the statute, assumed to exercise a power which they did not possess, and the disposition of the case by the trial court was correct.

The judgment and order appealed from should, therefore, be affirmed, with costs.

Hirsohberg, P. J., Bartlett, Woodward and Hiller, JJ., concurred.

Judgment and order affirmed, with costs.  