
    George H. Dildine, Appellant, v. The Board of Education of the City of New York, Respondent.
    Second Department,
    June 11, 1909.
    New York city — schools — senior teacher in charge of a school— appointment — salary.
    The position of “ senior teacher in charge of a school ” in New York city is that of a regular teacher who is performing special duties by direction of the principal of the school.
    Under the by-laws of the board of education of the city of New York providing that in schools of less than five classes extra compensation shall be paid to the teacher of the highest grade for acting as senior teacher in charge of his school, a teacher holding a certificate of the highest grade who was appointed by the principal of his school to the knowledge of the district superintendent to act in such capacity can recover the additional compensation, although he was not appointed td the position either by the school board or later by the board of education.
    Whether or not the acceptance of his regular salary by one who acted as- senior teacher in charge of the school estops him from claiming the extra compensation is a question for the jury, and a dismissal of the complaint at the close of the plaintiS’s case is reversible error,
    
      Appeal by the plaintiff, George H. Dildine, 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 26th" day of March, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case oii a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 1st day of March, 1907, denying the plaintiff’s motion to set aside the Court’s direction dismissing the complaint and for a new trial ' made upon the minutes.
    
      Ira Leo Bamberger [Sidney Lowenthal with him on the brief],. for the appellant.
    
      Theodore Connoly [Stephen O’Brien, Charles McIntyre and Francis K. Pendleton, Corporation Counsel, with him on the brief], for the respondent.
   Burr, J.:

The complaint.sets forth three causes of action. Under the first, plaintiff seeks to recover $556.16, which he claims that he is entitled to receive in addition to the regular salary previously paid' to him as a teacher in the public schools. The basis of this claim for additional compensation is that he acted as senior teacher in charge of a school between' July 16, 1900, and June 28, 1906. Under the second and third causes of action he seeks to recover the sums of ' $443.59 and $543.61, respectively, as assignee of Etta J. Bussell and Gertrude M. Traphagen, whose claims are similar in character. It is not disputed that the plaintiff did act as senior teacher in charge of Public School No. 38 in Bosedale in the borough of Queens for a portion of the time for which the claim is made, and as such teacher in Public School No. 48 for the balance thereof, or that Etta J. Bussell and Gertrude M. Traphagen so acted, the former at Public School No. 63 at Woodhaveip and the latter succeeding the plaintiff at Public School No. 38 at Bosedale.. The plaintiff and each of his. assignors held certificates or licenses permitting them to act as teachers of the highest grade in the schools where they were employed, and it was admitted that their work had been satisfactorily performed. The word “ senior ” as applied to a teacher does not relate to age or period of service, but to certain particular duties which such teacher was called upon to perform. There was proof that these additional services were important in character and required the expenditure of a considerable, time outside of school hours. On July 16, 1900, the defendant passed a by-law, which read as follows: “ In schools of less than five classes the teacher of the highest grade shall receive in addition to the regular salary of a teacher one hundred dollars per annum as com-pensation for acting as senior teacher in charge of the school.” A similar by-law was passed in 1902. In 1903 a by-law was passed which read as folows: In a school of the fifth order the teacher acting as senior teacher in charge of the school shall receive in addition to the regular salary one hundred dollars per annum.” Under a by-law adopted in 1902, classifying the schools, schools of the fifth order were declared to be those having less than six classes. Each of the schools above named had less than five classes. Heither the plaintiff nor either of his assignors was formally designated either by the school board of the borough of Queens or by the board of education to act as such senior teacher. The plaintiff was so designated by the principal of the school where he was engaged on June 20, 1899, and there was evidence from which the jury might have found that this was at the request and with the knowledge of the district superintendent. Both Miss Bussell and Miss Traphagen were also designated by the principals of their respective schools, Miss Bussell in September, 1901, and Miss Traphagen in September, 1900. There was evidence from which the jury might have found that the district superintendent, if he did not request, at least acquiesced in such designation. The defendant contends that in default of an appointment to the position of senior teacher in charge of a school either by the school board, in the first instance, or later by the board of education, neither .the plaintiff nor his assignors were legally acting, and that consequently they .cannot maintain a claim for additional compensation. Under the original charter of the city of Hew York it was provided that appointments to positions on the teaching staff of the defendant should be made by the school boards of the various boroughs, and the same was true of promotions. (Laws of 1897, chap. 378, § 1103.) By the revised charter appointments were to be made by the board of education. Promotions were to be made by the board of superintendents, subject to the approval of the board of- education. (Laws of 1901, - chap. 466, § 1090.) If the position of senior teacher in éharge of a school, was a separate and independent position, recognized as such in the statute and so classified, we think that there would be no answer to' the defendant’s contention. (Hoefling v. Board of Education, 120 App. Div. 545; Hazen v. Board of Education, 127 id.-235.) But neither in the original charter, nor in the revised charter, is the position of “senior teacher in charge of a school” enumerated among the various positions therein specified. Nor is there any by-law of "the defendant which has been put in evidence which provides how such teacher shall be designated. We think, therefore, that the position may be regarded as that of a regular teacher who, under the direction of the principal of the school, is performing special duties. Although there is no statute which in express terms gives to a principal of a school power to make such designation, prior to 1901 it does not seem to have been expressly provided for. The revised charter of 1901, which went into effect on January 1, 1902 (subsequently to the date of designation both of the plaintiff and his assignors), for the first time expressly provided, not only '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,” but “ when so made the principals, branch principals, heads of departments, teachers, assistants and all other members of the teaching staff shall be assigned to duty to such schools, and to such positions in such schools as the board of superintendents shall determine.” If, therefore, prior to January 1, 1902, such designation was made by a principal with the knowledge and acquiescence of the district superintendent, in the absence of an express provision as to how such designation should be made, we think such designation was binding upon the defendant. The by-law was manifestly passed to accomplish some purpose. We think that the effect of it was not to make two separate and distinct grades of teachers, the regular teacher and the senior teacher in charge of a school, but simply to provide that a regular teacher performing a particular service should, while performing such service, have additional compensation beyond that fixed for a regular teacher who did not perform such service. We think that the effect of such a designation was not to secure the person so designated permanently in the position, so that the provisions of the statute relative to removals or reassignments would have application. (Laws of 1897, chap. 378, §§ 1114, 1117, as amd. by Laws of 1899, chap. 644; Laws of 1901, chap. 466, §§ 1093, 1101.) The defendant also claims that the receipt by the plaintiff and his assignors of the regular salary during the period claimed prevents the maintenance of this action. We think it was at least a question for the jury whether under the circumstances the acceptance of the smaller sum operated either to estop the plaintiff and his assignors, or as a waiver of their claims. At the close of the plaintiff’s evidence the complaint was dismissed. We think this was error, and that the judgment appealed from should be reversed and anew trial granted, costs to abide the event.

Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  