
    Olof Thomson, Appellant, v. The Board of Education of the City of New York, Respondent.
    Second Department,
    March 4, 1910.
    Municipal corporations — board of education, city bf New York — former power to' make by-laws — validity of by-law changing rank of school teachers — when teacher not entitled to salary of new position.
    The by-law adopted by the board of education of the city of New York on the 14tli day of July, 1897, abolishing the position of general assistant in public schools and creating the position of assistant to the principal and providing for a method of appointment thereto was valid, even though its effect was to remove arbitrarily and without trial all persons holding the position of general assistant in the public schools.
    Although the Greater New York charter was passed prior to the adoption of said by-law, the charier did not take effect until January 1, 1898, and expressly continued the former powers of the board of education to make by-laws until it took effect.
    Even though the duties performed by a teacher whose position as general assistant in a public school was abolished by said by-lay were similar in character to those performed by persons occupying the new position of assistant to the principal, she had no right to the rank or to the salary incident thereto in the absence of a valid appointment to the new position.
    Appeal by the plaintiff, Olof Thomson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of June, 1909, upon the decision of the court, rendered after a trial at the- Kings County Trial Term before the court without a jury, dismissing the complaint upon the merits.
    
      Albert C. Aubery [Thomas F. Murtha with him on the brief], for the appellant.
    
      Stephen O'Brien [Theodore Gonnoly, Charles McIntyre and Archibald R. Watson with him on the brief], for the respondent.
   Burr, J.:

Plaintiff sues as the assignee of Sara F. Pettit to recover the difference between the sum actually paid, to her by defendant between June 1, 1900, and November 1, 1906, and the amount of compensation fixed by statute for the position of assistant to principa/ in one of the public schools of the city of New York. Prior to July, 14, 1897, plaintiff’s assignor held a position in a public school in the former city of New York, described as.general assistant. On that day the board of education of that city adopted a by-law abolishing the position of general assistant, creating the position of assistant to principal, and providing the method of selection and appointment thereto. Thereafter the Legislature passed an. act for the purpose' of establishing a uniform salary schedule for persons holding positions in the service of defendant, which, among other things, provided that no “female assistant to tie principal in said schools shall receive less than sixteen hundred dollars per annum after ten years of service.” (Laws of 1900, chap. 751, § 4.) It was conceded, arid the court has found, that the said Sara F. Pettit was never appointed to the-position of assistant to principal in the manner prescribed by such by-law. Plaintiff now contends, first, that the board of education of the former city-of New York had no power to pass- a by-law.such as was' passed on July 14, 1897, which should be operative as against his assignor, and, second, that the duties which she performed after the passage of the by-law were similar to those which she performed prior thereto, and that such duties were the same as those attached to the new position of assistant to principal. We think that the by-law was a valid one, even although the effect of it was to remove arbitrarily and without a trial all persons holding the position of ..general assistant in the public schools. (People ex rel. Callahan v. Bd. of Education, 174 N. Y. 169.) Although the Greater New York charter was passed May 4, 1897, it did - not take effect until January 1, 1898. The provisos specified in section 161.1 of said charter did not relate to the power or authority to make by-laws theretofore conferred by statute upon the board of education. On the contrary, this power was expressly continued until the charter and its several provisions should take effect. (Laws of 1897, chap. 378, §§ 1613, 1614; County of Queens v. City of New York, 48 App. Div. 337.) Even although the duties performed by plaintiff’s assignor were similar in character to those performed by one occupying the position of assistant to principal, in the absence of a valid appointment to such position she could claim neither the rank nor the salary incident thereto. (Hoefling v. Bd. of Education, 120 App. Div. 545 ; Hazen v. Bd. of Education, 127 id. 235 ; Dildine v. Bd. of Education, 133 id. 261.) There is no evidence to sustain the finding of the learned trial justice, made at the request of plaintiff, that during the period for which extra compensation is claimed the said Sara F. Pettit did discharge the duties of assistant to principal. It is true that in the complaint it is alleged that the duties and requirements of' the position of assistant to principal were of the same general nature and character as that of the position theretofore known and designated general assistant or general assistant to principal, and there is a further allegation specifying the particular duties performed by her either in the position of general,assistant, general assistant to principal or as assistant to - principal. Defendant denies this allegation as to similarity of requirements or that the specified duties which it is claimed that she performed were those of an assistant to principal. The case was submitted upon the pleadings and an agreed statement of facts. It is thereby admitted that after the passage of the by-law the said Sara F. Pettit continued to perform the duties specified, but there is no evidence either by way of admission or otherwise, that these -were the duties belonging to the position of assistant to principal. The learned trial judge in his opinion says: “ For upwards of four years she continued to perform the very same duties as she had done when she was a ‘ general assistant,’ but whether these duties were wholly the same as those-attached to the new position of assistant to principal ’ does not appear.” In the absence of any evidence to sustain it we doubt whether the respondent would be bound by this finding of fact which seems to have been inadvertently made. Giving to plaintiff, however, the benefit of this finding of fact, for the reasons hereinbefore stated, the conclusion of law that he was entitled to recover the additional compensation, which is the subject of this action, would hot follow.

The judgment appealed from should be affirmed, with costs.

Present — Woodward, Jenks, Burr, Thomas and Rich, JJ.

Judgment unanimously affirmed, with costs. 
      
      See Laws of 1897, chap. 378, § 1091, as amd. by Laws of 1899, chap. 417; Laws of 1900, chap. 751, § 4, and Laws of 1901, chap. 466, § 1091.— [Rep.
     