In re O'Leary

78 A.D. 475

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1903
• Status: Published

Opinion

Goodrich, P. J.:

The only fact which distinguishes this appeal from that in Matter of Cusack v. Board of Education (ante, 470) is that the petitioner, who is principal of Grammar School No. 5, not having been appointed as principal of one of the evening high schools, has been appointed to and accepted the position of principal of an evening elementary school, whereby his salary has been reduced from seven dollars to five dollars per night. This proceeding was commenced July 15, 1902, after the appointment of the principals of the four evening high schools. The appointment of the petitioner as principal of the elementary school was made December 8, 1901. He was illegally removed from the position of principal of an evening high school, and his acceptance of the other position and the performance of its duties cannot defeat his right to contend against such removal.

The order should be reversed and a peremptory writ granted for the reinstatement of the petitioner.

Woodward, Hirsohberg- and Jerks, JJ., concurred; Bartlett, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and peremptory writ of mandamus granted for the reinstatement of the applicant.