
    O’LEARY v. BOARD OF EDUCATION OF CITY OF NEW YORK.
    (Supreme Court, Appellate Division, Second Department.
    January 9, 1903.)
    1. Schools—Illegal Removal of Principal—Acceptance of Other Position.
    One illegally removed from the position of principal of an evening high school does not defeat his right to contend against it by accepting and performing the duties of the position of principal of an evening elementary school, the salary of which is less than that of the other.
    Appeal from special term, Kings county.
    Application of William J. O’Leary 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, TENKS, WOODWARD, and HIRSCHBERG, JJ.
    Conrad Saxe Keyes, for appellant.
    'James McKeen (Walter S. Brewster, on the brief), for respondent.
   GOODRICH, P. J.

The only fact which distinguishes this appeal from that in Cusack v. Board, 79 N. Y. Supp. 803, is that the petitioner, who is principal of grammar school No. 5, not having been appointed as principal of one of the evening high schools, has been appointed to and accepted the position of principal of an evening elementary school, whereby his salary has been reduced from $7 to $5 per night. This proceeding was commenced July 15, 1902, after the appointment of the principals of the four evening high schools. The appointment of the petitioner as principal of the elementary school was made December 8, 1901. He was illegally removed from the position of principal of an evening high school, and his acceptance of the other position and the performance of its duties cannot defeat his right to contend against such removal.

The order should be reversed, and a peremptory writ granted for the reinstatement of the petitioner.

Order reversed, with $10 costs and disbursements, and peremptory writ of mandamus granted for the reinstatement of the applicant. All concur, BARTLETT, J., in result.  