Summary
In Steinson v. Board of Educ. (165 N.Y. 431) although a discharged employee was held entitled to recover in an action at law for back pay, it is clear from the recital of the facts in the opinion of the Appellate Division (49 App. Div. 143, 148) that plaintiff's right to his position had been previously recognized by the State Superintendent of Schools.
Summary of this case from Austin v. Board of Educ. N.Y.COpinion
Argued January 16, 1901
Decided January 29, 1901
John Whalen, Corporation Counsel ( Theodore Connoly and Terence Farley of counsel), for appellant. Tompkins McIlvaine, John E. Eustis and Howard S. Gans for respondent.
The plaintiff was not an officer, but an employee. His employment was contractual, and his proper remedy is by action. Mandamus would not lie as of strict right, and might be refused in the discretion of the court; hence the former denial of that remedy does not bar the present action.
His state certificate was conclusive evidence of his qualifications to teach, and hence his employment, without more, was authorized.
His provisional certificate had expired before he was employed. The Appellate Division, in reversing upon the facts, is presumed to have held upon the conflicting evidence that it was not renewed. If it had been renewed, the only effect that could be given to it, in view of his having a state certificate, would be to support the inference that he contracted for employment with reference to its limited term. This inference is not here permissible.
The plaintiff's employment was subject to no other limit of time than the power of removal for cause, vested in the defendant and its officers, and the power of the state superintendent to revoke his state license. The plaintiff was discharged without right or cause and is entitled to recover.
The appeal might be dismissed, but as we do not think a new trial, pursuant to the order of the Appellate Division, necessary, we conclude to affirm, thus giving effect to the defendant's stipulation for judgment absolute.
The order should be affirmed, and judgment absolute ordered for plaintiff on the stipulation, with costs.
BARTLETT, HAIGHT, MARTIN, VANN and CULLEN, JJ., concur; PARKER, Ch. J., not voting.
Order affirmed, etc.