
    In the Matter of the Application of Irving L. Cohen and Others, Petitioners, for a Mandamus Order against The Board of Education of the City of New York, Respondent.
    
    Supreme Court, Special Term, New York County,
    April 15, 1937.
    
      A. Spencer Feld, for the petitioners.
    
      Paul Windels, Corporation Counsel [Cyrus C. Perry of counsel], for the respondent.
    
      
       Affd., 252 App. Div.-.
    
   Miller, J.

In Hughes v. Board of Education of City of New York (249 App. Div. 158) the Appellate Division has held that the provisions of the Education Law which confer tenure are applicable to evening high schools in a case which involves the principal of an evening high school. (Education Law, § 872.) The reasoning of the opinion is broad enough to include also teachers in evening high schools, if there are any such, who teach each and every period of each night during which the evening high schools are in session. The only situations which have been left open in the opinion of the Appellate Division are those involving teachers in evening high schools who serve less than each and every period of each session. The Appellate Division opinion does not state that the provisions of the Education Law in regard to tenure do not apply to such teachers. The appellate court merely indicated that no such case was before it, whatever would be the relevancy ” of such facts in a case where a night school teacher who served less than each full night of the session claimed permanent tenure.

Apparently all the applications which have been consolidated with the present motion involve teachers who have served less than each full night of the session. The answering affidavit of Edward Mandel states that: I am advised that none of the class teachers in the evening high schools served during the entire evening session.”

There is no basis in the Education Law for distinguishing between teachers who were required to serve and who served each period of each night of the session, and teachers who were required to serve and who served, as directed, less than that. The Education Law (§ 872) fixes a probationary period of not less than one year and not to exceed three years, but contains no statement to indicate how much teaching must be done within each year. From 1921 to 1933, the board of education, by resolutions, purported to accord its evening high school teachers permanent tenure after a probationary period of three years, at the end of which certificates of permanent appointment were issued. These resolutions are similar to the resolution in the Hughes case affecting principals. Apparently the board of education, during this period of twelve years, purported to grant permanent tenure to teachers in evening high schools even though they served less than the full period of each session.

The removal of the petitioner from his present position in the evening high school and the recommendation of the appointment of other persons from a new and subsequent list was, therefore, contrary to law.

The petition for a peremptory order of mandamus commanding the respondent to reinstate the petitioner in the same position he occupied in the evening high school as of June, 1936, is, therefore, granted. Settle order.  