
    Caroline E. Hoefling, Respondent, v. The Board of Education of the City of New York, Appellant.
    Second Department,
    June 7, 1907.
    Municipal corporations — school teachers in city of Mew York— salary incident to grade —temporary assignment to duties of higher grade.
    Charter of the city of New York makes the salary of a'public school teacher an incidept to her position or grade; She is assured of the salary attaching to that grade and the city contracts to pay it.
    The mere fact that a school teacher temporarily performs the duties of a higher grade than that to which she is appointed until it is finally filled by another appointment does not ipso facto entitle her to the higher grade or to the salary attached thereto.
    There is nothing in the statute which prevents those charged with the supervision and control of the public schools of the city of New York from temporarily assigning a teacher to perform the duties of a higher grade without giving her the permanent right to the salary of that grade.
    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 17th day of January, 1906, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived. ■
    
      Theodore Gonnoly [Stephen O'Brien and William B. Ellison with him on the brief], for the appellant.
    
      Ira Leo Bamberger, for the respondent.
    
      Edward B. Whitney, for Anna Y. McCarthy and others on eligible list.
   Miller, J.:

This is the case of a teacher receiving salary for a given position and suing to recover the difference between such salary and that provided for a higher grade or position. The school in which she was employed had less than twelve and more than five classes. The defendant’s by-laws provided that women principals, heads of departments and assistants to principals- of such schools after three years’ service should receive $1,600. A like salary was provided ’ by statute for a female head of department, or assistant to principal after ten years of service: The judgment awards her that salary, but it is not clear in what capacity she claims it. In her complaint she alleges. that she was an assistant to principal, an acting principal, and performed the duties of a principal. By amendment on the trial she was permitted to allege that she was a principal, and. the findings, and judgment purport to decide that she was. The facts are not. at all complicated. The plaintiff was the senior teacher in a school of. nine classes.' The principal, of the school was transferred and the superintendent requested the plaintiff to take charge of the school, which she did. It is .undisputed that she performed the duties of principal with marked efficiency during the entire period in question, and that is the only basis for her claim to the salary attaching to the position of principal, or head of department, or assistant to principal, provided by statute or by the defendant’s by-laws. The expressions “head of departs ment ” and “ assistant to principal ” are used interchangeably in the statute and in the defendant’s by-laws. On the face of it the plaintiff was not an assistant to principal, because there was no principal. Moreover, the defendant’s by-laws provide that tlie assistant to principal shall be selected and assigned to duty by the principal, subject to the approval of the superintendent, and it is provided by statute, section 1090, formerly section 1103, of the charter, that “principals, .branch principals, heads of departments, teachers, assistants and all other members of. the teaching staff, shall be appointed by the board of education on the nomination of the board of superintendents,” and that such nominations.shall be made “ from the list of properly certificated principals and teachers and other persons eligible for service in the positions to be filled, in the regular order of the standing of the'can didates on said lists,” etc. Section 1089, formerly section 1081, °f the charter, carefully regulates the preparation of the eligible lists. It is not pretended that the plaintiff was appointed to the position of principal, head of department or assistant to principal in compliance with this statute. In fact it is not claimed that she was ever appointed to either of these positions, but that as acting principal she did the work of all. The Legislature has seen fit to prescribe minimum salaries for all grades of teachers employed in the public schools of the city of Yew York, and to protect such teachers from removal or reassignment except after a trial upon 'charges preferred for “gross misconduct, insubordination, neglect of duty or general inefficiency. In effect the statute makes the salary an incident to the position or grade. The plaintiff occupied the position or grade of a graduating class teacher;. the statute assures her the salary attaching to that grade and the city contracts to pay that sum.. The mere fact that she performed the duties of a higher grade or position until it was finally filled by appointment or assignment did not if so facto entitle her to the higher grade or the salary attached to it. The provisions of,the statute respecting salary and tenure of position must be construed in connection with the provisions respecting appointment and assignment. The salary and tenure are assured only to those ivho obtain their positions in the prescribed manner, and the Legislature has not yet gone so far in its interference with the conduct and supervision' of the public schools of the city of Yew York as to provide that those charged with the duty of supervision and control cannot temporarily assign a teacher to perform the duties of a higher grade than the one occupied by her without giving her the right permanently to claim the salary attaching to such higher grade.

The judgment should be reversed.

IilESOHBEKG, P. J., WoODWAED, JeNKS and HoOKEE, JJ., concurred. , .

Judgment reversed and new trial granted, costs to abide the event. 
      
      See Laws of 1897, chap:878, § 1091, as. amd. by Laws of 1899, chap: 417; Laws of 1900, chap. 7.51, and Laws of. 1901, chap. 466.—[Rep.
     
      
       Laws of 1897, chap.-378.— [Ref.
     
      
      Laws of 1901, chap. 166.— [Ref.
     
      
      
         Laws of 1901, chap. 466, as amd. by Laws of 1901, chap. 718.— [Rep.
     
      
       See note ante, p. 546; Laws of 1897, chap. 378, § 1114, as amd. by Laws of 1901, chap. 466, § 1093; Laws of 1897, chap-. 378, § 1117, as amd. by Laws of 1899, chap. 644, and Laws of 1901, chap. 466, § 1101; People ex rel. Callahan v. Board of Education (174 N. Y. 169).— [Bep.
     