
    In the Matter of the Application of Pauline Papke and Others, Appellants, for an Order of Mandamus against The Board of Education of The City of New York, Respondent.
   Order affirmed, with twenty dollars costs and disbursements. Finch, P. J., Merrell, Martin and O’Malley, JJ., concur, without opinion; Untermyer, J., concurs for affirmance in opinion.

Untermyer, J.

(concurring). Although for the reasons stated in Matter of Jaffe v. Bd. of Education, City of N. Y. (240 App. Div. 402), decided herewith, I am of opinion that the appointment of temporary teachers is contrary to law, I concur in the affirmance of this order. Unlike Matter of Jaffe v. Bd. of Education, City of N. Y. (supra), the purpose of this proceeding is not to enjoin the practice against which complaint is made and to require appointments to the existing vacancies to be made in accordance with subdivisions 1, 3 and 5 of section 872 of the Education Law, but to require the board of education to recognize the petitioners as permanent appointees. It does not follow, however, because the petitioners were unlawfully appointed as substitutes, that their tenure of office becomes permanent. What the petitioners are entitled to, if I have correctly interpreted the statute, is that appointments of permanent, instead of substitute, teachers shall be made in the manner prescribed by the Education Law. This, for obvious reasons, the petitioners may not desire. They accordingly demand that they be recognized as the permanent incumbents of the offices to which they were temporarily appointed. Since they are not entitled .to this and since this appears to be the only aim of the proceeding and the only relief sought, I think the motion was properly denied. The order should, therefore, be affirmed, with twenty dollars costs and disbursements.  