
    CUSACK v. BOARD OF EDUCATION OF THE CITY OF NEW YORK.
    (Supreme Court, Appellate Division, Second Department.
    January 9, 1903.)
    1. New York City Schools—Teachers—Right to Appointment.
    Tlie principal of one of four evening high schools is, on their being rearranged so that to two only women shall be admitted, and to the otheitwo only men shall be admitted, entitled to preferential appointment in one of the rearranged schools, under Greater New York Charter, § 1090, providing that, in case of the consolidation or discontinuance of schools, principals and teachers thereby deprived of employment shall be preferred in appointments to be made in the schools of the city.
    2. Same—Application of Revised Charter.
    Greater New York Rev. Charter 1901, § 1101, providing that all principals appointed by the board of education “before this act takes effect” shall continue to hold their positions, subject to change of title, to reassignment or to removal for cause, as may be provided by law, and to right of the board to abolish unnecessary positions, though it is an amendment of section 1117 of the first charter, applies not only to principals appointed before the consolidation, but to any appointed before the revised charter went into effect.
    8. Same—Evening Schools.
    Under Greater New York Charter, § 1069, conferring on the board of education power to establish and conduct different kinds of schools, including evening schools, such schools are a part of the common school. system in that city.
    Appeal from special term, Kings county.
    Application of James Cusack for an alternative writ of mandamus to-the board of education of the city of New York. From an order denying it, applicant appeals. Reversed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS,. WOODWARD, and HIRSCHBERG, JJ.
    Conrad Saxe Keyes, for appellant.
    James McKeen (Walter S. Brewster, on the brief), for respondent.
   GOODRICH, P. J.

In 1887 the applicant was appointed principal’ of evening school No. 22 by the board of education of the city of Brooklyn, and continued as such until September 23, 1901, when he was transferred and made principal of evening high school No. 3. This position he held until the close of the school year 1901-02. He also holds the position of principal in day school No. 17. The majority, but not all, of the teachers in the evening schools are teachers in the day schools, and their services in the evening schools are separate and in addition to their services in the day schools. The appointment of teachers in the evening schools is for a specified time, but never beyond the school year. Prior to July -i, 1902, there were four evening high schools in the borough of Brooklyn, one of which was known as evening high school No. 3. In May the board of education of the city of New York, created by the Greater New York Charter, claims to have reorganized the evening high schools of the borough of Brooklyn. The only change was to make two schools exclusively for men and two exclusively for women, one of each class in the former city of Brooklyn, and one of each class in the former city of New York. The return alleges that the position held by the applicant has been abolished in good faith, and that no- male person has since been appointed to the position heretofore held by the applicant or to- perform the same duties. In June, 1902, the board appointed male principals for the schools for men, and female principals for the schools for women, three of which appointees had not previously held positions as principals of evening high schools, thus omitting the applicant, and in effect removing him from his position .as principal of an evening high school in the borough of Brooklyn. He prayed for a peremptory writ of mandamus, commanding his restoration as principal of an evening high school and his assignment to one of the present high schools.

The first point raised by the city is that the position of principal of evening high school was abolished in good faith in the reorganization of the plan of evening high schools of the borough. I think not; and in this connection it is to be noticed that it is not necessary for the applicant to show any actual bad faith on the part of the board in its plan for the reorganization of the evening high schools. It is only necessary to show that the board has acted without warrant of law. People v. Scannell, 48 App. Div. 69, 62 N. Y. Supp. 682.

There were four evening high schools before May, 1902. The number has not been changed, nor was any one in particular abolished. These schools were mixed evening high schools for men and women together. The only change in the system is the segregation of the sexes. Each of such schools has a principal in name and in fact, and there is nothing in the return to show that the duties of such principals have been changed in any respect whatever, nor that any new qualifications are required of the principals, nor that the applicant is incompetent to teach women by reason of his sex. The return does allege that the applicant is not possessed of qualifications peculiarly fitting him to be placed in charge of a school for girls; but that is a mere conclusion, and, if it is true, the charter, as we shall presently consider, provides means for his removal. Even if we accept it as true, the fact still remains that there are two male schools, to either of which the applicant might have been designated without apparent injury to the public service. Section 1101 provides that the holding of certificates of qualification (such as the applicant holds) “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.” That he was eligible to the position in question is evident from the fact that he was holding it by appointment of the proper officials; and, this being so, he was entitled to preferential appointment in one of the newly arranged evening high schools. Section 1090 provides that, “in case of the consolidation of schools or of the discontinuance of any school, principals and teachers of good standing, who thereby may be deprived of employment, shall be preferred in appointments to be made in any of the schools of the city.”

The applicant is now holding the position of principal in one of the elementary schools of the city. Provision is made in section 1093 for the removal of any principal or branch principal, among other causes, for '“neglect of duty or general inefficiency.” No proceedings have been taken under this section. It is a fair assumption that if he is qualified for the position of principal in an elementary school where both boys and girls are taught, he is qualified to hold the position of principal of an evening high school either for boys or girls.

The city also claims that section 1101, Rev. Charter 1901, does not apply to the position held by the applicant. That section provides that “all principals * * * appointed by the board of education before this act takes effect [January 1, 1902] * * * shall continue to hold their respective position and to be entitled to such compensation as is now provided by the lawful authority subject to change of title, to reassignment or to removal for cause, as may be provided by law, and subject to the right of the said board to abolish unnecessary positions.” The argument of the respondent is that this section, which is. an amendment of section 1117 of the first charter, was intended to apply to those who had been employed in the several school systems of the territory consolidated in Greater New York, and does not apply to those subsequently appointed or to any positions created after consolidation. That was doubtless one of the intentions of the original charter, but no such restricted meaning appears in the language of the section. Its terms are broad enough in language and in spirit to cover, not only such officials as were in existence at the time of the consolidation, but those who were “appointed by the board of education before this act takes effect”; that is, the act of 1901, which took effect January, 1902. At that time the applicant was holding the position of principal of evening high school No. 3, and his term did not end until the close of the school year of 1901-02, before which time— that is, on June 18th—the new principals were appointed.

The board claims, with apparent seriousness, that the evening schools constitute no part of the common school system of the state, and so do not come within the provisions of any statute, and have no relation to the provisions for common school education. So far as Greater New York is concerned, the answer is found in section 1069 of the charter, which confers upon the board the “power to establish and -conduct elementary schools, kindergartens, manual training schools, trade schools, truant schools, evening schools and vacation schools.” Whatever may be the provisions of the general school laws of this state, the evening school is just as much a part of the common school system in Greater New York as is an elementary school. The two classes of schools are grouped together with others, and referred to in the same paragraph. The board derives no more power in relation to the one than it does in relation to the other. The order should be reversed, and a peremptory writ granted for the reinstatement of the applicant.

Order reversed, with $10 costs and disbursements, and peremptory writ oí mandamus granted for the reinstatement of the applicant. WOODWARD, HIESOHBEEG, and JENKS, JJ., concur. BAETLETT, J., concurs in result.  