Laughlin, J.:
The relator, for about eighteen years prior to the 3d day of February, 1913, was a teacher in the public schools of the city of ¡New York, and on that day she absented herself without leave and remained absent and was suspended by the district superintendent on the 22d day of April, 1913; and in a. communication notifying her of the suspension he stated that he had on that day preferred charges against her to the defendant “for neglect of duty.” On that day he did prefer to the defendant charges against the relator in writing of “ neglect of duty ” and assigned as a reason for the charges the absence of the relator from duty since February 3, 1913, “ for the purpose of bearing a child.” On May 8, 1913, the district superintendent again preferred to the defendant charges against the relator in writing of “neglect of duty,” stating the specifications of the charges to be “That she has been absent from duty without leave since on or about February 3, 1913.” The investigation of the charges was delegated to the committee on elementary schools of the defendant; and on said eighth day of May the chairman of said committee notified the relator in writing of the charges, annexing a copy thereof as .made to the defendant on that day by the district superintendent and further notified her to answer the saíne before the committee on May 27, 1913, at a place and hour specified. At the time and place specified the relator appeared before the committee, and the hearing was adjourned to June 10, 1913, at which time she appeared before the committee with counsel and witnesses were examined under oath. The committee com sisted of seven members, and after the hearing, by a vote of six to one, she was found guilty of the charge of “ neglect of duty,” and the majority report of the committee to the defendant recommended her dismissal. This report was confirmed by the defendant by a vote of twenty-seven to five of its members on the 8th day of October, 1913, which was more than a majority vote of all its members.
[559]*559It is conceded that the relator took no appeal to the State Commissioner of Education. She made no attempt to review the action of the defendant in dismissing her by a writ of certiorari. She brought this proceeding evidently upon the theory that the defendant was without jurisdiction, on the charges and on the evidence, to remove her.
The relator is a married woman, and her absence from school ' is accounted for on the theory of illness or incapacity preced ing and following the birth of a child on the 7th day of April, 1913. It appears to be broadly contended by her counsel that in no circumstances is the defendant warranted in removing a married woman teacher on account of absence from school through illness incident to hearing a child, no matter how long such illness incapacitates her from performing her duty as a teacher. That is a doctrine, to which we cannot subscribe, for we think that while the defendant is vested with authority to excuse a teacher absent on the ground of illness, it may in some circumstances find that absence for alleged illness constitutes neglect of duty. The statutory provisions authorizing the defendant to remove teachers ate contained in section 1093 of the Greater New York charter (Laws of 1901, chap. 466),
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Laughlin, J.:
The relator, for about eighteen years prior to the 3d day of February, 1913, was a teacher in the public schools of the city of ¡New York, and on that day she absented herself without leave and remained absent and was suspended by the district superintendent on the 22d day of April, 1913; and in a. communication notifying her of the suspension he stated that he had on that day preferred charges against her to the defendant “for neglect of duty.” On that day he did prefer to the defendant charges against the relator in writing of “ neglect of duty ” and assigned as a reason for the charges the absence of the relator from duty since February 3, 1913, “ for the purpose of bearing a child.” On May 8, 1913, the district superintendent again preferred to the defendant charges against the relator in writing of “neglect of duty,” stating the specifications of the charges to be “That she has been absent from duty without leave since on or about February 3, 1913.” The investigation of the charges was delegated to the committee on elementary schools of the defendant; and on said eighth day of May the chairman of said committee notified the relator in writing of the charges, annexing a copy thereof as .made to the defendant on that day by the district superintendent and further notified her to answer the saíne before the committee on May 27, 1913, at a place and hour specified. At the time and place specified the relator appeared before the committee, and the hearing was adjourned to June 10, 1913, at which time she appeared before the committee with counsel and witnesses were examined under oath. The committee com sisted of seven members, and after the hearing, by a vote of six to one, she was found guilty of the charge of “ neglect of duty,” and the majority report of the committee to the defendant recommended her dismissal. This report was confirmed by the defendant by a vote of twenty-seven to five of its members on the 8th day of October, 1913, which was more than a majority vote of all its members.
[559]*559It is conceded that the relator took no appeal to the State Commissioner of Education. She made no attempt to review the action of the defendant in dismissing her by a writ of certiorari. She brought this proceeding evidently upon the theory that the defendant was without jurisdiction, on the charges and on the evidence, to remove her.
The relator is a married woman, and her absence from school ' is accounted for on the theory of illness or incapacity preced ing and following the birth of a child on the 7th day of April, 1913. It appears to be broadly contended by her counsel that in no circumstances is the defendant warranted in removing a married woman teacher on account of absence from school through illness incident to hearing a child, no matter how long such illness incapacitates her from performing her duty as a teacher. That is a doctrine, to which we cannot subscribe, for we think that while the defendant is vested with authority to excuse a teacher absent on the ground of illness, it may in some circumstances find that absence for alleged illness constitutes neglect of duty. The statutory provisions authorizing the defendant to remove teachers ate contained in section 1093 of the Greater New York charter (Laws of 1901, chap. 466),
It is contended by the learned counsel for the relator that notwithstanding the fact that a charge was preferred against her of neglect of duty, of which the defendant was by express provision of the statute given jurisdiction and authorized to remove her if sustained, still the court may in this proceeding disregard that charge, which has been sustained by the defendant, and look into the. report of its committee and discern therefrom that the removal was not on the charge of. neglect of duty, but was owing to the fact that she was absent to bear a child. The fallacy of this argument lies in the fact that even though she could not be removed for giving birth to a child, it is possible that the length of her absence for that purpose might be such as to authorize her removal for neglect of duty, notwithstanding the fact that such neglect could not be predicated merely upon the birth of a child.
We are of opinion that the question with respect to the right of the defendant to remove a teacher for necessary absence owing to such illness is not presented for decision, and it would not be proper to express an opinion on that question at this time, for the relator had a legal remedy under the statute by an appeal to the State Commissioner of Education, who was authorized to reverse the determination of the defendant in [562]*562dismissing her if in his judgment the facts did not warrant it. Of course, if the charge preferred against the relator, upon which she was removed, was not one on which the defendant was authorized to remove her, then the action of the defendant in removing her would be a nullity, and she might be reinstated by mandamus; but that is not this case.. She had no absolute right to hold the position. The Legislature might have provided that teachers might be removed at will without cause assigned, or charges, or a hearing. (People ex rel. Miller v. Peck, 73 App. Div. 89.) But in order to prevent abuse, for political or other purposes, of unrestrained power, the Legislature saw fit in its wisdom to secure teachers against removal excepting upon charges, among others, of neglect of duty. Having been removed on a charge of neglect of duty, if the relator has any grievance, it is with respect to the sufficiency of the evidence to sustain the charge, and on that question she had her statutory remedy by appeal to the State Commissioner of Education (People ex rel. Walrath v. O’Brien, 112 App. Div. 97), which she should have exhausted before invoking the aid of the court. But in so holding we express no opinion on the question as to whether, in the event that her appeal authorized by the statute should be unsuccessful, she could obtain redress by mandamus or other proceeding or action upon the theory that the charge of neglect of duty was colorable merely, and that an examination of the report and evidence would show that she was not removed for neglect of duty. It may be observed, however, that we regard it as exceedingly doubtful whether any view of the evidence, the majority committee report and the action of defendant, would warrant a decision that the relator was not removed on the ground of neglect of duty.
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Since amd. by Laws of 1913, chap. 688.— [Rep.