Majority
p. 65PEOPLE ex rel. HORVAY v. BOARD OF EDUCATION. (Supreme Court, Special Term, New York County. June 16, 1914.)
Headnote
1. Municipal Corporations ©=>211—Board op Education—Rights of.As the board oí education may, under Greater New York Charter (Laws 1901, c. 4(50) §| 1008, 1093, 1100, Investigate through committees, it may abolish a position, based on an investigation through a committee, which it duly ratified.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 567-570; Dec. Dig. ©=>211.J
2. Mandamus <$=>159—Proceedings—Alternative Writ.
Where, on petition for mandamus for reinstatement, the pleadings raised the issue as to whether the abolition oí plaintiff’s position was in. good faith, an alternative writ should issue.
[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 324, 325; Dec. Dig. <3=>159.]
cgr^JTor other cases see same topic & KMY-NUMBER in all Key-Numbered Digests & Indexes
Application by H. E. Horvay for writ of mandamus against the Board of Education. Alternative writ issued.
Reversed on appeal to the Appellate Division ( 164 App. Div. 930 , 149 N. Y. Supp. 558 ), on another ground.
Frank L. Polk, Corp. counsel, of New York City, for appellant.
John T. Eoew, of New York City, for respondent.
[1] The relator is not entitled to a peremptory writ of mandamus upon the asserted ground that the abolition of his
p. 66
position was illegal, in that the respondent took action upon the report of its building committee rather than upon its own initiative. It appears from the petition, and with more particularity from the answering affidavit, that the recommendations of the committee were adopted and ratified; the abolition being in fact the act of the respondent. There can be no question of the latter’s power to investigate matters of administration through its committees. Charter, §,§ 1068, 1093, 1100; Farrell v. Board of Education, 67 Misc. Rep. 187 , 122 N. Y. Supp. 289 . And the fact that there was such an investigation, with ratification of the result by the respondent, suffices for the legality of the action taken, so far as within the discretion of the appointing power.
[2] An issue of fact as to the respondent’s good faith in abolishing this position being presented by the petition and the answering affidavit, the relator may have an alternative writ of mandamus.
In other respects the motion is denied.