
    In the Matter of Janet Lindsey, Appellant, v Board of Education of Mount Morris Central School District et al., Respondents.
    Argued September 10, 1979;
    decided September 18, 1979
    
      APPEARANCES OF COUNSEL
    
      Zachary Wellman, Paul E. Klein and Janet Axelrod for appellant.
    
      Susan S. Robfogel and James A. Spitz, Jr., for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for consideration on the merits. The defense of failure to give notice under subdivision 1 of section 3813 of the Education Law, not having been raised in the court of original jurisdiction, was waived (Flanagan v Board of Educ., 47 NY2d 613, 617; Matter of Schlosser v Board of Educ., 47 NY2d 811).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.  