
    Irving A. Hazen, Appellant, v. The Board of Education of The City of New York, Respondent.
    Second Department,
    June 5, 1908.
    Municipal corporations — teacher acting temporarily as head of department—salary.
    A designation to act temporarily in a given position is not an appointment to that position.
    Where one- classified as a teacher is designated to act temporarily as head of department, he is not entitled to the salary of the latter position.
    The right to an office, not the discharge of its duties, determines the right to the salary. A grade ‘ ‘A” license of the city of Brooklyn before the consolidation does not entitle the holder to an appointment- as head of a department in . Greater Sew York, and- this being so, section 1101 of the revised charter does not apply.
    Appeal by the plaintiff, Irving A. Hazen, 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 17th day of July, 1907, upon the decision of the court, rendered after a trial before the court without a jury at the Kings County Trial Term, dismissing the complaint upon the merits.
    
      John Hill Morgan, for the appellant.
    
      Theodore Connoly [Stephen O'Brien, Thomas F. Noonan and Francis K. Pendleton with him on the brief], for the respondent.
   Miller, J.:

The plaintiff sues to recover the difference between the. salary-paid him by the defendant from May 3, 1900, when chapter 751 of the Laws of 1900 went into effect, to March 1, 1906, and the minimum salary prescribed by that act for the position of “ male head teacher.” The provision in question, now found in section 1091 of the'revised charter (Laws of 1901, chap. 466), so far as applicable, is as follows: “No'male head teacher, male assistant to the principal, male first assistant, or male vice-principal in said schools, shall receive less- than twenty-five hundred dollars per annum, nor after five years of service as such, less than three thousand dollars per annum.” The case was tried by ¿he court without a jury and a, judgment was rendered dismissing the complaint on the merits, from which the appeal is taken.

' The plaintiff was a teacher in the city of Brooklyn at the time of consolidation and held a Grade A license “to teach a common school in the said city as a teacher of Latin and Geometry in Manual Training High School.” A classification of teachers was adopted by resolution of the board of education of the city of Hew York for the borough of Brooklyn on the 27th day of June, 1899, and the plaintiff was classified under the heading, “ Manual Training High School, Teachers.” Said resolution also contained the following provision : Teachers of their respective subjects designated to act temporarily as head teachers, Irving A. Hazen, Department of Foreign Languages.” It is conceded that the plaintiff has performed the duties of a head teacher since thus temporarily assign'ed. After the passage of said chapter 751 of the Laws of 1900 the plaintiff filed with the board of education a statement which was evidently required of all teachers for the purpose of fixing their status under said statute. In that statement lie said that his present position was that of a regular teacher of Latin and geometry in Manual Training High School, borough of Brooklyn, and that he claimed a salary of $2,180 per annum under said law. Subsequently, and on December 15, 1902, he filed an application for a" First Assistant’s “ License to teach classical languages in high school,’’ and in that application stated that his present position was “ teacher of Latin, Manual Training High School.” He failed on his examination, and the license was refused. On May 9, 1898, the board of education adopted a resolution prescribing the minimum requirements of teachers of the various grades and the licenses necessary for each grade. Said resolution provided: Ho one shall be appointed or promoted to the position of Head of Department or Assistant Principal in a high school who does not hold a First Assistant Teacher’s license or a Principal’s license for high schools.” It is conceded that the plaintiff did not hold a first assistant teacher’s license or a principal’s license for high schools. Section 1104 of the charter of 1897 (Laws of 1897, chap. 378) provided : “ A school board shall also have power to fix a standard of qualification as a necessary requirement for the service of all principals and teachers in the high schools and schools of the borough, which requirement may be higher, but not lower, than the minimum qualifications established by the board of education of The City of New York.” And section 1089 of the revised charter (Laws of 1901, chap. 466, as amd. by Laws of 1901, chap. 718) provided: “ The board of education on the recommendation of the board of superintendents shall designate, subject to the requirements of the State school laws in force when this act takes effect or that may thereafter be enacted, the kinds or grades of licenses to teach which may or shall be used in The City of Hew York, together with the academic and professional qualifications required for each kind or grade of license. The board of education, on the recommendation of the board of superintendents, shall also designate, subject to the like limitations, the academical and professional qualifications required for service of principals, branch principals, supervisors, heads of departments, assistants and all other members of the teaching staff.”

The plaintiff contends that he was eligible to appointment as head teacher by virtue of the Grade A license held by him at the time of consolidation, and that the by-law quoted supra was inoperative to deprive him of eligibility for such appointment by reason of section 1101 of the revised charter, which, so far as material, provides as follows: “ All licenses to teach or certificates of qualifications for teaching granted by the superintendent of public instruction of the city of Brooklyn, or by authority of the board of education of the said city oi Brooklyn, prior to February first, eighteen hundred and ninety-eight, or recognized by the board of education of the said city of Brooklyn or the State superintend-' ent of public instruction as in force .at that date in said city, shall, .unless revoked- for cause by the State superintendent of public instruction, be recognized by the city superintendent of schools and the board of examiners of The City of New York, as in full force, and shall entitle the holders to appointment or promotion to any position'to which they were respectively eligible by the possession of such licenses or certificates.” There is proof and a finding to- the effect that said Grade A license “ was the highest certificate granted to teachers in- high schools by the old city of Brooklyn ; ” but there is no proof of any by-law or regulation of the board of education ' of the city of Brooklyn making the holder of such a .certificate eligible to appointment as head of a department. Upon the face of the certificate the plaintiff was licensed to teach Latin and geometry in a manual training high school. The professional requirements of a teacher of a given subject and of the head of a department might, be very different. The duties of the head of a department are supervisory in character, and it does not necessarily follow-that the holder of the highest license granted to teachers of a given subject was also eligible for appointment or promotion to the position of head teacher or head of department. And unless said license made the plaintiff eligible for such promotion or appointment, the provision of said section 1101 quoted supra would not apply. The plaintiff relies upon Matter of Brooklyn Teachers’ Assn. (85 App. Div. 47; 176 N. Y. 564). In that case it was conceded that the petitioners were eligible to appointment and promotion to any grammar grade in the schools of said city of Brooklyn, and the petitioners sought to have their names placed on an eligible list for appointment or promotion to such grades. The pro- ' visions of the statute quoted supra authorized the board of education to prescribe the qualifications of teachers for the different positions (see, also, Matter of Stebbins, 41 App. Div. 269), and to provide by resolution that the possession of a first assistant teacher’s license or a principal’s license for high schools should be requisite for appointment or promotion to the position of head teacher except so far as that power may have been curtailed by section 1101, supra. But there is no evidence in this record that the plaintiff has been deprived of any right which he possessed as-holder of said Grade A license to teach Latin and geometry in the Manual Training High School. He recognized his status as a. teacher,- accepted without protest the salary to which he was entitled as a teacher, took two examinations for a first assistant’s license, and failed on each.

But even assuming that the plaintiff established his eligibility for the position of head of the -department of foreign languages in the Manual Training High School, the proof utterly fails to show an appointment or promotion to that position. On the contrary, the resolution which he says had that effect classified him as a teacher, and provided that all teachers of the respective subjects were designated to act temporarily as head teachers. We have already held that a designation or assignment to act temporarily in a given position is not an appointment to that position. (Hoefling v. Board of Education, 120 App. Div. 545.) The plaintiff contends that the temporary assignment was void, and that as the board must be presumed to have intended a valid act it must follow that it intended to make a permanent appointment• but that is a non sequitur. It is evident that both he and the board understood that he was not entitled to the position of head teacher until he obtained a first assistant’s license, and under that understanding he was temporarily designated to act. He" was quite willing to accept the status of a regular teacher at the salary paid him and to perform the duties of a head teacher, thus keeping the latter position open to him until he became eligible, and under that understanding he acted for six years. Even though he had been eligible to appointment as head teacher, the board was not obliged to appoint him, and it is a novel proposition that an irregular temporary assignment can have the effect of a permanent appointment.

Oonsolidation and the changes in the statute applicable to the department of education doubtless necessitated a readjustment of the teaching force. It is but reasonable to suppose that during the process of readjustment many teachers were called upon temporarily to perform the duties of positions without being permanently assigned to them, and perhaps without even being eligible to such assignment. Like the plaintiff they were doubtless quite willing to perform such duties for the salary' of the position to which they were entitled, in .the hope of ultimately becoming eligible to permanent assignments. Ho matter how long they may thus have continued to act, they should not now. be permitted to- claim permanency of tenure and a salary made by statute an incident to the position on the ground that they have- been acting irregularly. Certainly they have no contract rights to salaries which neither.they nor the board of education employing them understood they were • to receive. The plaintiff was-receiving $1,500 a year when said' chapter 751 of the Laws of 19.00 went into effect.. That statute fixed the minimum salary for a male regular teacher at $1,300, and after ten years service as such at $2,400. The plaintiff at once claimed á salary of $2,180,. and for six years seems to have received a salary ranging from $1,850 to $2,400, ' There can be no doubt that he was entitled to the position, as an incident to which that salary has been paid. Permanency of salary and tenure in that position has. been assured him by said statute. . But he cannot recover the salary óf a higher position without showing a clear legal right to that position. Said chapter 751 of the Laws of 1900, as construed by the courts, did have the effect of making the salary ail incident to - the position, very much as the salary of a public officer is an inch dent to the office. The right to the office, not the discharge of its duties, determines the right to the salary. There is nothing in this . view in conflict with Moore v. Board of Education (121 App. Div. 862). That case merely held that section 1117 of the charter secured permanency of tenure to the teachers of the annexed districts in the positions held by them at the time of consolidation ; the. question of eligibility was not involved.

The-judgment should be affirmed.

"Woodward, Jenks, Hooker and Gaynor, JJ., concurred.

'Judgment affirmed, with costs. . 
      
       See § 4, amdg. Laws of 1897, chap. 378, § 1091, as amd. by Laws of 1899, . chap. 417.— [Rep.
     