The complaint alleges that in September, 1887, the plaintiff, then having a certificate of qualification to teach granted by the State Superintendent of Public Instruction, was employed as a first assistant teacher in one of the common schools of the city of New York at the salary of $1,728 a year, payable monthly; that-he had never been removed ; that the defendant had refused to pay his salary since the 12tli of March, 1890, although he had demanded payment; that his claim for his salary had been duly presented to the comptroller of the city of New York; and that he had brought this action to recover his salary from the 12th of March, 1890, up to the time of the commencement of the action. The defense substantially was, that on the 9th of October, 1886, the plaintiff received a provisional license to teach for six months from the city superintendent of schools; that in September, 1887, he had been appointed a teacher, as alleged in the complaint, but that such appointment was not for any fixed time, but remained and continued in force by renewals of said provisional license for periods of six months each, until the 12th day of March, 1890, when the provisional license expired; that it was not then renewed and extended, and that thereupon the employment of the plaintiff under such appointment ter*145minated; that the action of the city superintendent of schools in refusing to renew his license was a final determination of the matter and is a bar to this action ; and that, further, his rights had been adjudicated in a proceeding brought by the plaintiff, as relator, to compel the board of - education of the city of New York to pay his salary, in which proceeding his demand was denied.
The defendant claims that, as a condition precedent to a valid employment in the schools of the city, plaintiff must have had a license from the city superintendent.
The statute provides that an examination for such a license must be conducted by the city superintendent, or such one of his assistants as he may designate, in the presence of at least two inspectors of public schools, who shall be designated for the purpose by the by-laws of the board of education ; and it further provides that the license granted after such examination must be signed by the city superintendent and by at least two inspectors designated for that purpose, who shall certify that they were present at the examination and concur in granting the license. The by-laws permit the city superintendent to issue two kinds of licenses, one called a provisional license, good for six months, and another called a permanent license ; and they provide that no permanent license shall be issued until the candidate shall have had six months’ experience as a teacher in one of the common schools of the city. The power given to the city superintendent, therefore, is strictly prescribed by these by-laws, as they are limited by section 1040 of the Consolidation Act (Laws of 1882, chap. 410). He may issue a provisional license, good for six months, which must be signed also by the two inspectors. He can issue a permanent license to be signed in the same way. No power is given to him to renew a provisional license from time to time, or to issue any license whatever, except one signed by two inspectors and after an examination as prescribed by section 1040 of the Consolidation Act. There is no pretense that, when the plaintiff was hired by the ward trustee, he had any such license. He had a provisional license dated in October, 1886, and that had expired, and though the city superintendent had assumed to renew it, his renewal was invalid for two reasons. In the first place, the statute gave him no authority to renew a provisional license, and, in the second place, every *146license to be valid must be signed by two inspectors as well' as by himself, and it is testified explicitly in this case that they had not only not signed it but knew nothing about it. Not only is no power given to the city superintendent to renew these provisional licenses from time to time, but there is every reason why this power should not be lodged in him. The power of removal of a teacher is expressly vested in the ward trustees or the board of education, and the city superintendent has no power whatever in the premises, except to make recommendations to the board of education. (Consol. Act, §§ 1038-1042.) If a license from the city superintendent were a necessary qualification to teach, and the city superintendent was vested with the power of granting provisional licenses from time to time, and renewing them if he saw fit, the result would be that the teachers would hold their positions purely at the will of the city superintendent, who might oust them by refusing to appoint them after any term of six months had expired. No such power is vested in him. TIe may, undoubtedly, grant a provisional license for six months, but at the end of that time he is bound to refuse a further license, or upon proper examination to grant a permanent license.
But although the plaintiff had no city license at the time the city employment began, yet his employment was, in our judgment, valid. He did have a certificate from the State Superintendent of Public Instruction, which, by the statute, is “ conclusive evidence that the person to whom it was granted is qualified by moral character, learning and ability to teach any common school in the State1.” (Laws of 1864, chap. 555, tit. 1, § 15, as amd. by Laws of 1888, chap. 331.) That certificate was sufficient to authorize the board of ward trustees to employ him as a teacher, if they saw fit to do so. The schools of the city are subject to the general statutes of the State (Consol. Act, § 1022), and in the absence of some statutory authority, the city officials have no power to limit the effect of the certificate granted by the State Superintendent. When one bearing that certificate presents himself to the board of ward trustees, they alone have the power to employ him (§ 1035, subd. 2), and they are at liberty to employ him if they see fit. It is not intended to say. that they are compelled to employ him because he has such a certificate. They may, of course, apply such tests as they wish and *147examine him as they see fit, bnt if he has such a certificate the ward trustees have the right to hire him without his securing any other certificate, and such a hiring is good and binding, being within their power to make. The power given to the board of education to issue licenses does not authorize it, in our judgment, to limit the effect given by the statute to the certificate of the State Superintendent. The power has the full effect which ought to be given to it if it is construed to authorize them to grant licenses to persons who have no certificate from the State Superintendent of Public Instruction, in analogy to the like power given to the school commissioners of the several counties of the State. (Laws of 1864, chap. 555, tit. 2, § 13, subd. 5.) It is well known that certificates are granted by the State Superintendent only after the strictest examination, and there is every reason why such a certificate should afford the holder of it ample evidence that he is qualified to teach in the common schools, as the law prescribes that it shall.
The fact, therefore, that the so-called provisional license expired in March, 1890, had no effect whatever on the status of the plaintiff as a teacher or upon his contract with the ward trustees. Not only is this so in principle, but it has been so adjudicated by the State Superintendent of Public Instruction. It- appears that when the plaintiff presented himself to teach after the 12tli of March, 1890, the principal of the school where he was employed refused to admit him in compliance with the direction of the city superintendent, and from that action he took an appeal to the State Superintendent of Public Instruction which is set forth at length in the case. That was done in accordance with the express provisions of section 1039 of the Consolidation Act, which provides that appeals from the acts and decisions of the city superintendent may be made to the State Superintendent in the same manner and with the like effect as in cases now provided by law. By the Code of Public Instruction (See act of 1864, tit. 12, § 1) it is provided that “ Any person conceiving himself aggrieved in consequence of any decision made: * * * 7. By any other official act or decision concerning any other matter under this act, or any other act pertaining to common schools, may appeal to the Superintendent of Public Instruction, who is hereby authorized and required to examine and decide the same; and his decision shall be final and conclusive and not sub*148ject to question or review in any place or court whatever.” Whenever any act has been done as a result of which it is -claimed that a teacher lias been dismissed from his employment, an appeal lies to the State Superintendent. (People ex rel. Yule v. Eckler, 19 Hun, 609.) The State Superintendent, therefore, had jurisdiction of this appeal, and his determination is final and conclusive. That determination was set forth in the record, and it is to the effect that, although the provisional license was stated to have expired on the 12th of March, 1890, the relator was qualified by reason of his holding a certificate from the State Superintendent to teach in the common schools, and that he could not be removed by the act of the city superintendent in refusing to renew his provisional license. So far as the city superintendent was concerned whatever was done had no effect on the status of the plaintiff when he had been employed by the ward trustees. It appears affirmatively that the plaintiff was not removed in any other way. The ward trustees by a resolution passed on the 13th of January, 1890, undertook to transfer him from his position of permanent assistant to that of additional teacher at the same salary which he had before. .From that resolution the plaintiff, as he was permitted to do by section 1038 of the Consolidation Act, appealed to the board of education, and the appeal was sustained by a resolution of the board on the 15th of March, 1890. After that resolution had been passed the plaintiff remained in his position of permanent assistant at the same salary. It is conceded that he made efforts to perform his part of the contract to teach, but was not permitted to do so, and when that was made to appear, coupled with the fact that he had not been properly removed, he became entitled to recover his wages. (Gillis v. Space, 63 Barb. 177.) But it is said that he occupied a public office, and that as there was no attempt to remove him which was so far successful that he could not perform the duties which he was hired to perform, he is, therefore, not entitled to recover until he has been reinstated. The answer to that is quite plain. The plaintiff did not hold a public office. He was a mere employee of the ward trustees, selected,by them and removable by them if for any reason they saw fit to remove him and the board of education concurred. It is hardly necessary to examine into the correctness of this statement, for it has already been adjudicated *149that a teacher in the employ of a board of education does not hold a public office, but is simply an employee of the board. (People ex rel. Murphy v. Board of Education, 3 Hun, 177, 179.)
A school teacher in the common schools of New York city occupies no different position than does a teacher in the-common schools of the State. The only distinction is that such teachers are hired for a specified time, and if the contract is not renewed the employment ceases. In New York city it does not seem that they are hired for a fixed time, but they can be removed at any time by the action of the proper authorities, which action is a pure exercise of the discretion vested in them in this regard by the statute. (3 Hun, 177.) It would be a strange doctrine indeed if it were to be held that every person employed to teach was an incumbent of a public office. He receives no commission ; he has no certificate of appointment; he takes no oath of office; he has no public duty to perform, and his position does not in any way resemble the position of one upon whom a public office has been conferred. He is hired. He has precisely the same rights as any one has under his contract of employment, and that is as stated in the case of Gillis v. Space (supra). If his employer refuses to permit him to work, he need only offer his services, from time to time, and then sue for his salary. This imposed no hardship upon the city, because if it was not thought best to continue his employment he could have been removed at any time by the ward trustees or by the board of education (Consol. Act, §§ 1038, 1042), and their action in that behalf is not subject to review. (People ex rel. Murphy v. Board of Education, 3 Hun, 177.)
The defendant sets up as a defense the final order of this court denying plaintiff’s motion for a peremptory writ of mandamus to the board of education to put him on the payroll. That an application of that nature was made and denied is conceded, but that denial had no effect whatever as to the right of the plaintiff to recover his salary. It simply held that a writ of mandamus was not the proper remedy, and it was so stated in the opinion of the court. (People ex rel. Steinson v. Bd. of Education, 60 Hun, 486.) The court held his claim wras nothing more than a mere common-law demand, and that “ it is quite a novelty to seek to collect a debt by the writ applied for,” and for that reason alone his application was denied. New proceedings were subsequently begun, and the court denied them *150simply on the ground of laches, as appears hy the report of the case in 20 Appellate Division, 452. Nothing that was said hy the Court of Appeals affirming these determinations of this court tends in any way to show that the denial of the writ of mandamus had any effect upon the right of the plaintiff to maintain this action.
The answer contains a plea of the Statute of Limitations as to so much of the claim as accrued six years before the 15th of July) 1896, which seems to have been the time of the commencement of this action. What may be the effect of that defense and to what extent if at all it is available to the defendant, was not considered by the court below and no facts are presented to enable us to consider it. In reversing this judgment, as we must, we do not pass upon the plea of the Statute of Limitations or suggest what effect it may have.
Judgment reversed, with costs to the appellant to abide the event of the new trial hereby granted.
McLaughlin, J., concurred; "Van Brunt, P. J., and Ingraham, J., dissented.
Barrett, J.:So much has been written in this case that I will content myself with briefly stating the conclusions at which I have arrived.
1. The plaintiff was not a public officer, but a mere employee of the trustees. To the authority for this view of the plaintiff’s position cited by Justice Rumsey, I add Swartwood v. Walbridge (57 Hun, 33). This case is directly in point and holds that the remedy of the discharged teacher is “ to tender a continuance of his services and to bring an action for the recovery of his compensation as if such services had actually been rendered.” The cases cited by Justice Ingraham are entirely inapplicable, relating, as they do, to persons who have been removed from office or public position, and who consequently must be reinstated before an action for salary will lie. In the present case the plaintiff was neither removed nor discharged. His employment continued without break. He was thus, while retained, simply prevented by an agent of the defendant from performing his duties. His case is clearly distinguishable from those where a discharged employee sought to recover compensation from the municipality for the period during which, owing to an unlawful discharge, no services were rendered by him.
*1512. When the plaintiff was employed by the trustees he was in the possession of both a State and city license to teach. The possession of the former is conceded; that of the latter denied. The so-called provisional license which he originally received from the city was simply a license to teach. The six months’ qualification was unauthorized. The statute gave the board power to prescribe the form of the license, but not its substance. There was no express authority to grant two classes of licenses, one provisional and one permanent. Nor can such authority be implied, for the reason that the entire context in subdivision 2 of section 1040 of the Consolidation Act is at variance with any such implication. Provision is there made for the revocation of the authorized license in a specified manner; also for the re-examination of the licensed teacher under specified conditions ; and for an appeal to the State Superintendent against any such revocation. All these provisions are idle, and the appeal is rendered nugatory, if the same result can, in effect, be attained by originally granting but a temporary license. To that extent, the by-law of the board is in conflict with the statute. And these provisions are a complete answer to the argument ah inconvenienti, and in favor of a trial of the teacher before granting him a permanent license. When we find, also, that temporary periods are expressly provided for in the case of State licenses (Laws of 1864, chap. 555, tit. 1, § 15), we cannot overlook the conspicuous absence of any such provision in the local statute. When the license here was granted to the plaintiff, it was necessarily predicated upon the certificate of qualification which it contained. It was the statutory expression of that qualification. Upon his examination with that result he became entitled to teach “ in any of the schools under the charge of the board.” (Subd. 2, supra.) The board could not vary or qualify the legal effect of what had been thus found. A simple and efficient remedy was provided in case it were subsequently ascertained, whether in one day or six months, that the licensed teacher was incompetent. My judgment, therefore, is, that the plaintiff, having been found upon examination to be duly qualified as a teacher, was entitled to, and in legal intendment received, a license to teach in the schools of the city ; and that the addition of the words “ for the term of six months from the date of'this certificate” must be rejected as surplusage and as forming no part of the license.
*1523. This view renders it unnecessary to express a decided opinion upon the question as to which my brethren have differed, namely, as to whether the minute provisions of the local act are confined to persons who have not secured a State license.
For the reasons stated, the judgment should be reversed and a new trial ordered.
McLaughlin, J., concurred in result.