Cusack v. Bd. of Educ. of New York

• Decision Date: 17 March 1903
• Citation: 174 N.Y. 136,66 N.E. 677
• Parties: CUSACK v. BOARD OF EDUCATION OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

174 N.Y. 136

66 N.E. 677

CUSACK

v.BOARD OF EDUCATION OF CITY OF NEW YORK.

Court of Appeals of New York.

March 17, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

In the matter of the application of James Cusack for writ of mandamus against the Board of Education of New York. From an order of the Appellate Division (79 N. Y. Supp. 803) reversing an order denying a motion for a writ, defendant appeals. Reversed.

George L. Rives, Corp. Counsel (James McKeen, of counsel), for appellant.

Conrad Saxe Keyes, for respondent.

WERNER, J.

The relator seeks to be reinstated to the position of principal of an evening high school, from which he was removed by the Board of Education of the City of New York under the circumstances hereinafter set forth. The lelator is, and for many years has been, principal of day school No. 17 in the borough of Brooklyn. In 1887 he was appointed by the Board of Education of the then city of Brooklyn to the position of principal of evening high school No. 22, which he held until September 23, 1901, when he was transferred to evening high school No. 3 to serve in the same capacity. The latter position he continued to fill until the close of the school year of 1901-02, at which time he failed of reappointment. Prior to July, 1902, there had been four evening high schools in the borough of Brooklyn, all of which were devoted to the education of persons of both sexes. The Board of Education determined to segregate the sexes; to set apart two of the evening high schools for the use of males, and two others for females; and to appoint male principals for the male schools, and female principals for the female schools. In the latter part of June, 1902, in pursuance of this newly adopted policy, the Board of Education appointed two female principals and two male principals for the evening high schools. The relator and one other male principal were not reappointed, and this proceeding was brought to compel relator's reinstatement. At Special Term the learned presiding justice denied the application for an alternative writ of mandamus. Upon appeal to the Appellate Division (79 N. Y. Supp. 803), the order entered upon that decision was reversed, and an order made directing the issuance of a peremptory writ of mandamus to compel relator's reinstatement to the position from which he had been removed. From the last-mentioned order the Board of Education appeals to this court.

The relator stands upon the provisions of sections 1101 and 1093 of the charter of the city of New York (Laws 1901, pp. 479, 483, c. 466). Section 1101, so far as material to this proceeding, provides that: ‘Except as herein otherwise provided * * * all principals, teachers and other members of the educational staff in the public school system of any part of the city of New York * * * shall continue to hold their respective positions and to be entitled to such compensation as is now provided or may hereafter be provided by the lawful authority subject to change of title, to reassignment or to removal for cause, as may be provided by law, and subject to the right of the said board to abolish unnecessary positions.’ Section 1093 provides, in substance, that certain officers connected with the educational department may prefer charges against principals, teachers, and certain other officers connected therewith, ‘for gross misconduct, insubordination and general inefficiency.’

The relator's contention is that section 1101 secures his tenure of office to the position from which he claims to have been illegally removed, subject only to trial and conviction upon one or more of the charges that may be preferred under section 1093. As these sections are to be interpreted in the light of other questions which arise in other cases now pending before us, we shall confine the present discussion to a single point that seems to us to decisive of this proceeding. The very secti...