
    Frank M. Bogert, Plaintiff, v. The Board of Education of the City of New York, Defendant.
    (Supreme Court, Kings Trial Term,
    June, 1904.)
    New York city — Tenure of teachers in Brooklyn.
    A person, duly employed as a teacher in the city of Brooklyn when, on Jan. 1, 1898, it became a part of the new city .of New York,, was continued by its charter (L. 1897, cli. 378, §§ 1114, 1117) in the same position and grade, not merely until the end of the term of that employment but until removed for cause after trial by his school board, and, therefore, where, after the expiration of that term of employment and after Jan. 1, 1898, the city superintendent of schools refused to permit the person to continue as a regular' teacher, he is entitled to recover of the city board of education his salary as fixed less anything he has earned in the meantime as a substitute.
    Motion by both sides to direct a verdict, reserved for -consideration.
    Action to recover salary as a school teacher in the city of New York at the rate of $1,250 a year, payable in equal monthly payments, from July 1, 1898, to December 1, 1901. The facts are as follows:
    The plaintiff held a certificate of qualification to teach from the State Superintendent of Public Instruction, under section 15 of title 1, chapter 555 of the Laws of 1864 as amended by chapter 331 of the Laws of 1898, and was employed as principal of a common school in the town of New Utrecht when that town became a part of the city of Brooklyn, on July 1, 1894, by virtue of chapter 451 of the Laws of 1894. By section 13 of that act the plaintiff’s eligibility, status and gradé as a teacher were continued under the city administration. He continued to teach in the city of Brooklyn and was principal of one of its branch schools when that city became a part of the new city of New York on January 1, 1898. He was employed for a fixed term which was to expire on June 30, 1898. At the expiration of that term the city superintendent of schools refused and has continued to refuse to permit him to continue as a regular teacher, but gave him a certificate to teach as a substitute as he might be able to get opportunity in the case of sick or absent teachers. The plaintiff offered to continue to teach in his grade, and has continued ready to do so.
    Lavina Tally and Ira Leo Bamberger for plaintiff.
    Jerome W. Coombs for defendant.
   Gaynor, J.:

The plaintiff being employed as a teacher in the city of Brooklyn at the time it became part of the new city of New York, he,was continued in' the same position or grade by the charter of the new city, not merely for the remainder of the term for which he was then employed, viz., until July 1, 1898, hut like all other teachers in the new city, ipr an indefinite term of employment, i. e., until removed for cause after a trial by his school board (§§ 1117, 1114; People ex rel. Callahan v. Board of Education, 174 N. Y. 169). The city superintendent of schools had no power to remove him or prevent him from teaching in his grade, and he is entitled to recover for the breach of his contract of employment, (Steinson v. Board of Education, 165 N. Y. 431). The measure of damages is his salary less anything he has earned meanwhile as a substitute.

I direct a verdict for the plaintiff for $4,270.83, with interest.  