
    The People of the State of New York ex rel. Cecelia J. McNulty, Respondent, v. William H. Maxwell, as President, and Others, Constituting the Board of Examiners of the Board of Education of the City of New York, Appellants.
    Second Department,
    January 10, 1908.
    Certiorari — when writ issues — municipal corporation — refusal of certificate by examiners of education, city of New York.
    Under section 2120 of the Code of Civil Procedure certiorari may issue in two instances only: First, where the right to the writ is conferred by statute, and, second, where the writ issues at common law, and the right thereto has not been taken away by statute.
    The action of the board of examiners of the board of education of the city of New York in refusing to certify, under section 1091 of the charter, that the experience of a teacher in schools other than high and training schools in said city is equivalent to, a certain length of experience in the high and training schools is not judicial or quasi judicial in its nature, when the decision is not founded upon testimony, nor the result of conflicting claims urged by adversaries, nor on a finding of fact based on conflicting evidence. Hence, a common-law writ of certiorari does not lie to review such decision, and no statutory right thereto is conferred by charter.
    Rich, J., dissented.
    Appeal by the defendants, William H. Maxwell, as president, and others, constituting the board of examiners,, etc., from' an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 22d day of June, 1907, granting the relator’s motion for a writ of certiorari.
    
      Theodore Connoly [Stephen O’Brien, Thomas F. Noonan and Francis K. Pendleton with him on the brief], for the appellants.
    
      John E. O’Brien, for the respondent.
   Hooker, J.:

In her petition for a writ of certiorari the relator alleged that she was the holder of á diploma of one of the State Normal schools licensing her to teach in any common or public school in the State of New York.; that for several months in the spring of 1896 she was a. regular teacher in a rural public school in the county of St._ Lawrence; that during the years 1897 and 1898 she was a regular teacher for one school year in another rural public school in the county of St. Lawrence; that for several months from September 1, ■ 1900, she was a regularly.appointed teacher in the Baldwin High School in Nassau county, and on March 11, .1901, was regularly appointed by the school, board of the borough of Queens, ■ city of . New York, as a regular teacher in one of the public schools in said borough and city and continuously held- that position until on or about February 1, 1902, on which day she was transférred and duly appointed a regular teacher in Public School No. 1 in the borough of Queens, city of New York, and regularly held that position and rendered service until February 1, 1906, and that since that time she has been a “model” teacher in the Jamaica Training School of the class of the 6th B grade, which grade she alleges is of a lower rank than the grade of which she* was teacher in Public School No. 1/ On October 25, 1906, she presented to‘the defendants, who constitute the board of examiners of the board of education of the city of New York, a petition praying for a certificate to be issued by the board, stating that the experience of the relator as a' teacher in schools other than the high and training schools of the city of New York was equivalent to six years and eleven months, of experience in the high and training schools of the city of New York. The board passed upon her petition and adopted a resolution that such experience in schools other than the high and training schools of the city of New York was equivalent to no years of experience in the. high and training schools of the city of New York. The relator then made a motion for a writ of certiorari, directing the members of the board of examiners of the board of education, the defendants, to make a return of their proceedings in the matter of the relator’s petition-. ' The order was granted and the defendants appeal. ■ .

The powers of the board of examiners with respect to certificates of equivalents are specified in section 1091 of the Greater New York charter (Laws of 1901, chap. 466), which section provides the minimum salaries that shall be paid to different members of the teaching staff and to the teachers of the elementary and the highl- and training schools.- The section provides as follows:The board of education shall have power to adopt by-laws fixing the salaries of all members of the supervising and the teaching staff; and the salaries of all principals and teachers shall be regulated by merit, grade of class taught, length of service, experience in teaching, or by a combination of these considerations; ” the section then declares that the by-laws which the board shall adopt shall establish a uniform schedule of salaries, that the same shall provide for an equal annual increment, and then goes on to provide minimum salaries for the Hifferent classes of teachers, as for instance: “ And no female teacher in said elementary schools shall receive less than six hundred dollars per annum, nor shall the annual increment for any female teacher therein be less than forty dollars ;■” and further the section provides: No female model teacher shall receive less than one thousand ‘dollars per annum, nor after five years of service as such, less than fifteen hundred dollars per annum;” after making the above, with other provisions as to annual salaries, section 1091 continues: “ The board of examiners shall issue to a principal or a teacher who has had experience in schools other than the schools of The City of New York,-a certificate stating that the experience of such .teacher is equivalent to a certain number of years of experience in the schools of the said city. The board of examiners shall issue to a principal or teacher who has had experiénce in schools other than the high and training schools of The City of New York, a certificate stating that the experience of such teacher is equivalent to a certain number of years of experience in the high and training schools of the said city. Such certificates made by the board of examiners shall be final and conclusive on all matters pertaining to ¿xperienee therein stated, and shall entitle their holders to salaries in accordance with the schedules of salaries established in conformity with this section, in like manner as though the year’s mentioned in such certificates had been served in those schools of The City of New York that are respectively mentioned in such certificates.”

The appeal by the deféndants from the order directing that a writ of certiorari be issued, presents for our determination the question whether the action of the board of examiners of the board of education, in refusing the certificate asked for, is final, or whether the action' of the board in refusing such a certificate may be the subject of judicial review. It is evident that the .'relator’s purpose in-endeavoring to procure the certificate' stating that her years of experience were equal to six years and eleven months’ experience in the high and training schools In the city of New York, was to obtain a salary of $1,500 a year, provided' by the section to be paid to a female model teacher after five years’ service, in place of her salary of $1,000-which she is- now receiving as a female model teacher of ' less than five years’- experience ; hence the question becomes an important one- to the relator. ;

A writ of certiorari may only be issued as permitted by section 2120 ¿f the Code, of Civil. Procedure, which allows, it in two' instances, namely, where the right, thereto, is, conferred by statute, or where the- writ. may be issued at common law" and has not been expressly taken’ away by statute.' There is mo -claim in this case that: the right' to the’ writ is .conferred by .statute; 'the question then is whether the writ is allowable at common law. ' :

The common-law writ of'Certiorari issues to review -only the decisions of inferior judicial • or quasi judicial tribunals. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; People ex rel. Trustees v. Board of Supervisors, 131 id. 468; People ex rel. O'Connor v. Supervisors, 153 id. 370; People ex rel. Schau v. McWilliams, 185 id. 92.) The question which presents itself, therefore, is whether or- not the action -of the board of examiner's. of the board of- education, in refusing the relator a certificate that-her prior experience is equivalent to any expei'ience in the high and training schools, was judicial or- quasi-judicial. It does not appear that any testimony was taken-by the. hoard ,of examiners in the determination of its . action upon the relator’s petition; the action of the board Was the result not of conflicting -claims- urged by adversaries,, nor the finding of a fact based upon the presentation of conflicting evidence, but- rather was a.decision based, upon the .exercise of discretion and judgment peculiar to the members of the. board in determining -the character- of experience the relator had had as a teacher in different schools, both rural and ' urban. The exercise of this discretion and judgment-is, not a judicial determination of the question presented to the board.

In People ex rel. Buckley v. Roosevelt (19 App. Div. 431) it was determined that a writ of certiorari would not lie to review the action of the police commissioners of the city of New York acting under-the Civil Service Law as examiners of an applicant for promotion in the police force of the city; and it was said: “ Certain power is given to such examiners to test the qualifications of the applicants for public office, and the method of such examination, with the result arrived at, in the exercise of the judgment of the • examiners, upon- the examination had before them, must necessarily rest within their discretion, and is nota judicial determination of the question presented to them.”

In People ex rel. Mack v. Burt (65 App. Div. 157; affd., 170 N. Y. 620) it was said that the action of the State Civil Service Commission and the municipal civil service commission of the city of New York in including in Schedule B of the classification of the positions in the department of health a position of anti-toxin accountant was administrative rather than judicial in its character, and could not be reviewed by certiorari.

In Matter of Armstrong v. Murphy, No. 2 (65 App. Div. 126), it was held that the determination of the police commissioner of the city of New York in refusing to grant a theatrical license under section 1473 of the Greater New York charter (Laws of 1897, chap. 378) was hot a judicial act, was discretionary with the commissioner as an executive, administrative or ministerial act, and hence not reviewable by certiorari.

In Matter of Walker v. Maxwell (68 App. Div. 196) we find a case iriore nearly like the one in hand, where this court determined that the action of the board of examiners of the board of education of the city of New York, in refusing a teacher in one of the public schools of the city a license permitting her to teach a higher grade, is in no sense judicial'but purely executive, administrative or ministerial, and hence a writ of certiorari cannot be issued to review such action. The character of the act of the board of examiners in passing upon the relator’s application for a certificate of equivalents, as in this case, is no more judicial in its character than the act of the same board upon an application for a license to teach a higher grade; and in fact as to the former the statute not only does not confer the right of review- by certiorari but, --on the other hand, declares that such certificate made by the board of examiners shall be final and conclusive on all matters pertaining to experience therein stated.

Our conclusion is that the writ should not have issued, and the order should be reversed, with ten dollars costs and disbursements,' and the application denied, with costs.

Woodward, Jenks and Miller, JJ., concurred; Rich, J., dissented.

Order reversed, with ten dollars costs and disbursements, and application denied, with costs.  