
    Robert Kabus, Jr., Respondent, v. Herman P. Seftner et al., Appellants.
    (Supreme Court, Appellate Term,
    April, 1901.)
    A contract to qualify a pupil to pass a particular examination is entire — Teachers’ power to punish unbecoming conduct.
    A teachers’ agreement to qualify a pupil to pass a particular examination is entire and part performance thereof is impossible; and therefore, where the pupil is properly suspended, after he has received part of the instruction, for conduct subversive of discipline, and thereafter sues the teachers to recover his tuition fee paid in advance, it cannot be apportioned, as the pupil has forfeited all of it.
    The faculties of all schools and colleges are vested with power to suppress and punish unbecoming conduct of pupils.
    
      Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Mew York, eleventh district, borough of Manhattan.
    Percival S. Menken, for appellants.
    Edward Miehling, for respondent.
   Leventritt, J.

The plaintiff sues to recover $200 paid by him as a tuition fee to the defendants, who conduct a school for the purpose, among others, of qualifying students to pass the examination of the Board of Regents of this State. The complaint alleges that in consideration of the payment of $200 the defendants agreed to give the plaintiff private instruction until he should receive the forty-eight academic counts necessary to pass the Regents’ examination; that the defendants entered upon the performance of the contract, but failed to continue their instruction, with the result that the plaintiff failed to receive the stipulated number of counts. The material part of the answer is a separate defense that the plaintiff was suspended from the school for improper and insubordinate conduct, until such time as suitable apology should have been made.

The evidence shows much variance from the pleadings, but the essential nature of the dispute appears with sufficient clearness. While the plaintiff claims that the breach of the defendants was the latter’s failure to give him daily an hour’s instruction, he admits that the stated reason of his suspension was the alleged use of improper language. The defendants claim that the plaintiff repeatedly charged one of the instructors with lying and that he was suspended as a consequence. When the plaintiff left the school he had obtained twenty-six of the forty-eight counts. The justice, declaring in his opinion that the plaintiff was guilty of the.use of improper language, nevertheless apportioned the recovery, allowing the plaintiff proportionately for the earned counts. This was error. The plaintiff should have received all or nothing, for the contract was entire and indivisible. The defendants agreed to qualify the plaintiff for a particular examination. If they failed to do that they were entitled to no compensation. On the other hand, if the acts of the plaintiff prevented them from living up to their contract, he forfeited the entire amount paid for Ms tuition. Under the contract in evidence there could not he part performance and a partial recovery, on some theory of a quantum, meruit.

The plaintiff by entering the defendants’ school subjected himself to their reasonable rules of discipline. The power is vested in the faculties of all schools and colleges to suppress and punish unbecoming conduct. People ex rel. O’Sullivan v. New York Law School, 68 Hun, 118; People ex rel. McHugh v. School Officers, 18 Abb. Pr. 165; Starr v. Liftchild, 40 Barb. 541; 21 Am. & Eng. Ency. of Law, 771. If the charge against the plaintiff was true, his actions were certainly subversive of discipline. And beyond this no instructor could or should be compelled to continue his duties after such insult, until suitable apology offered. The question before the justice was simply one of fact whether or not the defendants’ refusal was caused by the misconduct charged against the plaintiff. If yes, they were entitled to judgment; if not, the plaintiff should have succeeded. In no event could there have been partial success for each. The judgment must be reversed.

Bisohoee, P. J., and Clarke, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  