
    In the Matter of the Application of Engrey F. Norman, Appellant, v. The Board of Education of the City of New York, Respondent.
    
      Matter of Norman v. Bd. of Education, N. Y., 142 App. Div. 939, affirmed.
    (Argued October 3, 1911;
    decided October 10, 1911.)
    Appeal from an order of the Appellate 'Division of the Supreme Court in the first judicial department, entered January 27, 1911, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the appointment of the petitioner to the position of assistant to the principal or head of department in the public schools of the city of New York upon the nomination of the board of superintendents.
    
      Ira Leo Bamberger and Frederick Cyrus Leubuscher for appellant.
    
      Archibald R. Watson, Corporation Counsel (Terence Farley and Charles McIntyre of counsel), for respondent.
   Per Curiam.

Order affirmed for the reason that even if subdivision 12 of section 67 of the by-laws of the board of education of the city of New York should be held unreasonable, and said board should have passed upon the relator’s nomination by the board of superintendents in disregard of such by-law, the application to the court for a writ of mandamus was not made within forty days from the filing of such recommendation in the office of the secretary of said board of education and while a vacancy existed to which said board could have appointed the relator. The other questions presented upon this appeal are not passed upon. No costs are allowed on this appeal.

Cullen, Oh. J., Haight, Vann, Werner, Willard Bartlett, Hiscock and Chase, JJ., concur.

Order affirmed.  