Misc.] Supreme Court, June, 1908. same dependent upon their judgment, they cannot delegate or invest that power in the commissioner of public works, since it is a well settled principle "that public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others." Birdsall v. Clark, 73 N. Y. 76. From the foregoing it must be clear that the charter contemplates that the common council shall order a new walk by resolution, and, it being admitted that no resolution to that effect exists, that the commissioner of public works and the city of Buffalo have no right or authority to cause the sidewalks in question in front of plaintiffs' premises to be laid, or to make or levy any assessment thereon for the same, and that the said assessments must, therefore, be declared and adjudged null and void. Ordered accordingly. HOWELL R. WOOD, Plaintiff, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendant. (Supreme Court, Queens Trial Term, June, 1908.) Common schools - Teachers: Appointment and removal-Effect of Greater New York charter in extending term of employment — Application to teacher having license expiring within period of extension: Validity of agreements to employ unlicensed teacher License subsequently granted. One employed to render such service in the capacity of teacher as may be required of him was not occupying the position of viceprincipal or first assistant within the meaning of chapter 751 of the Laws of 1900 known as the Davis Law. The provisions of section 1117 of the Greater New York charter, making the positions of teachers permanent subject to the limitations of the act, were not applicable to a teacher in the village of Flushing, whose license was for a period expiring within the current year, except for a period limited by the expiration of his license. A resolution of the school board of the borough of Queens appointing one to the position of vice-principal subject to his receiving a license must be taken subject to the further limitation of Supreme Court, June, 1908. [Vol. 59. the by-laws of the board of education of the city of New York providing that no one shall be appointed assistant principal who does not hold a first assistant teacher's license. A subsequent license to the appointee as assistant teacher but not as first assistant teacher did not, therefore, satisfy the condition of his appointment. ACTION to recover for services as vice-principal of public schools in the borough of Queens, city of New York. Collins, Wells & Hughes, for plaintiff. Francis K. Pendleton, Corporation Counsel (Stephen O'Brien, of counsel), for defendant. BLACKMAR, J. School district No. 5 in the town of Flushing, county of Queens, was established as a permanent school district by special act, chapter 81 of the Laws of 1848. This act, although amended several times, had not been repealed at the time of the creation of the city of Greater New York. The act created a board of education for the district and provided, among other things, that the said board should "have and possess all the rights, powers, and authority of town superintendent of common schools within. said district." The town superintendent of common schools within said district then had power to ascertain the qualifications of candidates for the position of teacher and to grant certificates in such form as should be prescribed by the superintendent. R. S. (1846), pt. 1, tit. 2, chap. 15, art. 4, §§ 66, 67, 68. It, therefore, follows that the board of education of school district number five had power to license teachers within said district. The Flushing High School was established by the said board of education of school district No. 5. See Laws of 1875, chap. 346. On the 25th day of May, 1897, the plaintiff made a contract with said board of education of the village of Flushing to render such service in the capacity of teacher, in the schools of said village, as should be required of him by the board of education or the superintendent of schools in said village during the school year 1897 and 1898. The term of employment expired on the last Friday of June, 1898. Misc.]. Supreme Court, June, 1903. The contract was made subject to the manual of the board of education which provided, among other things, that the teachers should hold their office during the school year for which they were appointed, unless sooner removed for cause. Plaintiff gave evidence tending to show that he was assigned by the superintendent of schools of said district to the duty of teaching classes in the high school and also was instructed to assist the principal in the performance of his duties. The territory embraced in this school district afterward became a part of the city of Greater New York, by act of the Legislature taking effect January 1, 1898, and this date found plaintiff in the performance of his duties under the contract above referred to. It is the claim of the plaintiff that, by the terms of the charter of the city of Greater New York, he was continued permanently in the position he occupied on January 1, 1898, subject only to removal for cause; that he continued to perform such duties; that they were such duties as were performed by a vice-principal or assistant principal as that grade was subsequently established, and that, under the terms of the Davis Law (Laws of 1900, chap. 751), he is entitled to the compensation provided by that law. The plaintiff also claims that he was appointed vice-principal on June 30, 1898, under a license granted by the city superintendent on that date and made permanent on June 30, 1901, and that the charter protects him in this position and entitles him to the compensation fixed by the Davis Law. It is contended by the defendant that the license under which plaintiff was performing his duties at the time of consolidation expired in 1898; that the provisions of the charter of Greater New York continued his employment only until such date; that the performance of his duties since. that time was pursuant to an appointment made on June 30, 1898, under a yearly license issued by the superintendent of schools, which was continued and made permanent on the 30th day of June, 1901; that such position, although designated in the resolution of appointment as vice-principal, was made subject to the proper license being obtained; that the only license obtained was that of assistant teacher, and, there Supreme Court, June, 1908. [Vol. 59. fore, that he was entitled only to the pay fixed for such grade, which he has been concededly receiving. It is also claimed. by the defendant that the position held by the plaintiff on the 1st day of January, 1898, was not that of first assistant or vice-principal or assistant principal and that he has never occupied such position. There are three questions presented for consideration by this record: 1. Was the plaintiff, on January 1, 1898, occupying the position subsequently defined by the Davis Law as viceprincipal or first assistant? 2. Was the effect of section 1117 of the charter of Greater New York to continue him permanently in that position? 3. Was he appointed vice-principal on June 30, 1898, under a license which made the position permanent? These questions will be considered separately. 1. It was held in the case of Moore v. Board of Education, 121 App. Div. 862, that the rights of the plaintiff under the Davis Law were determined by the character and nature of the employment at the time of consolidation. In that case, the plaintiff had been for eight years a female teacher of the girls graduating class in the former county of Richmond, and continued in that employment after consolidation. As the Davis Law provided that no female teacher of a girls' graduating class should, after ten years of service, receive less than $1,440 per annum, it was held that she was entitled to that rate of compensation, although, after the charter of Greater New York went into effect, her class was so changed that, in addition to teaching scholars about to graduate, she was called upon to teach others not so far advanced. It was also held unimportant that the place she held at the time the charter went into effect was not designated in terms as a position" in any act or by-law. 66 The position of "teacher of the girls graduating class" is one easily defined. The position of first assistant or viceprincipal is different. It is not a well-defined position, like that of principal, or teacher of any particular grade or class. The duties performed by a vice-principal, so far as that position is recognized in the schools of Greater New York, Misc.] Supreme Court, June, 1908. are such as the principal may from time to time call upon any of the teachers to perform; and the fact that it was the custom, when occasion required, to call upon any particular teacher to perform these duties is not, it seems to me, sufficient to define his position as that of vice-principal or first assistant. The plaintiff in this case was employed to render "such service in the capacity of teacher-as may be required of him." He was engaged primarily in instructing. The exact nature of the duties, other than teaching, which he was performing on the 1st day of January, 1898, is not definitely disclosed by the evidence; and, although at times he assembled the school at the morning session, and at the beginning of the afternoon session, dismissed the school at the end of the session, made out reports when required so to do, and received pupils sent by other teachers under penalty of discipline, yet he was at the same time engaged in teaching classes; and I, therefore, cannot make a finding that the duties which he was performing were those of a first assistant or vice-principal as those duties were subsequently defined. 2. The contract of May 25, 1897, between the plaintiff and the board of education of the village of Flushing, was equivalent to a license to teach in such village. The plaintiff also had a license, dated September 1, 1897, issued by the State Superintendent, to teach in school district No. 5 for six months from the date of the license and no longer. It, therefore, appears that plaintiff's license to teach expired, at the latest, on the last Friday in June, 1898. The question is, therefore, presented whether the charter of Greater New York continued him permanently in the position which he occupied at the time it went into effect. Section 1117 of the charter of 1897 reads as follows: "All superintendents, assistant or associate superintendents, and all principals, teachers and other members of the educational staff in the public school system of any part of the city of New York, as constituted by this act, 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 various school boards, subject to the limita |