I concur with the opinion of Chief Judge BARTLETT, but in addition to the views expressed by him I dissent from the prevailing opinion herein upon further grounds, and in order that the same may be explicitly stated I desire to refer to certain facts in the case.
For a period upward of eighteen years, prior to the 22d day of April, 1913, relator was a teacher in the public schools of the city of New York, and as such teacher since the institution of the pension fund contributed her pro rata share to that fund. During the year 1913, and prior thereto, she was a teacher in charge of one of the schools. By reason of her dismissal she has been deprived of her position as a teacher, together with her right to the salary attached to the same and to the property right which she had or might have in the pension fund.
Asserting her removal was unlawful, she secured a peremptory writ of mandamus requiring her reinstatement, and from the order of the Appellate Division, reversing the order of the Special Term, she has appealed to this court.
In view of her property rights and the general principles that prevail, in my opinion, no question can be raised as to the power of this court to dispose of the question presented.
The relator was a married woman. On February 3d 1913, she absented herself from school and immediately pursuant to the by-laws of the board of education sent a communication to the proper authorities stating that the cause of her absence was an affection of her ears and nose, and accompanied such communication with a physician's certificate. This fact appears in the report of the committee which was approved by the board of education, *Page 470 as well as the further fact that by advice of her physician she went to Lakewood, New Jersey, occasionally returning to New York to consult him. On April 7th, 1913, she gave birth to a child; thereafter, and on April 22d 1913, while she was still in the hospital and in the ordinary course of events had not recovered from the illness incident to childbirth, the district superintendent by instructions of the city superintendent of schools preferred charges of "neglect of duty" against her and suspended her as a teacher. The specifications attached to the notice of suspension read as follows:
"The reason for this action is the continuance of the absence of Mrs. Peixotto from duty since February 3rd, 1913, for the purpose of bearing a child."
A hearing upon the charges preferred against the relator occurred before the committee upon elementary schools. Majority and minority reports were made by the committee.
The majority report of the committee found relator guilty of the charge of "neglect of duty" and recommended her dismissal. The report having been approved by the board of education relator was dismissed from her position.
The report of the committee, so approved by the board of education, referred to the testimony taken upon the hearing before the committee, but the same was not made a part of the return by the defendant. In the absence of such evidence we are not advised whether or not such illness of relator or enforced absence by reason thereof continued down to the time of her removal, or whether or not the same was merely temporary. We cannot indulge in presumptions on this subject. If her illness was merely acute and her enforced absence of short duration the defendant should have returned the evidence taken before the committee. Likewise, if the alleged affection of the relator was merely a pretense for her *Page 471 absence, evidence disclosing that fact should have been returned. The truthfulness of the statement made by relator and her physician as to her illness and absence commencing February 3d stands unchallenged and must on the record before us be considered as true, and yet relator has been convicted of "neglect of duty" by reason of her absence since February 3d 1913, caused, as stated by herself and physician, by an affection of the nose and ears, which illness was a legitimate cause for such absence.
Notwithstanding this fact, and the absence of evidence to contradict it in the record, she has been removed upon the charge of "neglect of duty" by reason of absence "for the purpose of bearing a child."
As stated by Chief Judge BARTLETT the board of education was without power or jurisdiction to remove relator. (People ex rel.Murphy v. Maxwell, 177 N.Y. 494.)
I, therefore, vote for reversal.
WERNER, CHASE and COLLIN, JJ., concur with CUDDEBACK, J.; HISCOCK, J., concurs in result on the ground that the relator's right to relief, if any, was through an appeal in the first instance at least to the president of the university and commissioner of education; WILLARD BARTLETT, Ch. J., and HOGAN, J., read dissenting opinions.
Order affirmed. *Page 472