It is alleged in the petitioners’ affidavit and admitted by the answering affidavit of the city superintendent that “ All holders of the licenses or certificates known as ‘ Grade A ’ were eligible by the possession thereof to appointment and promotion to any grammar grade in the schools of the said City of Brooklyn.” It is also alleged and admitted that under section 1101 of the revised charter (Laws of 1901, chap. 466) license “ Grade A” shall be recognized by the superintendent of schools and hy the hoard of examiners of the city of New York as in full force; .that, unmindful of the aforesaid charter provision, the board of education of the city of New York has adopted two by-laws which, to make an applicant. “ eligible for license for promotion to any grade in the last two years of the elementary school course,” require certain examinations and other qualifications in addition to the holding of license “ Grade A,” or No. 2; that pursuant to these by-laws, the city superintendent of schools has prepared a list known as “ The Eligible List of persons holding license for promotion ” and placed thereon only the names of those teachers who have complied with the requirements of the said by-laws; and that “ the effect of the said by-law, if the same be enforced, is arbitrarily and unjustly, to render your petitioner, Jeannetta Baum and many hundred other teachers ineligible for appointment or to promotion to a position to which they were rendered eligible by the possession of licenses and certificates granted to them by the Superintendent of Public Instruction of the City of Brooklyn and by authority of the Board of Education of the said City of Brooklyn.”
I agree with the presiding justice that “ the two by-laws are inoperative so far as they forbid promotion of persons holding the Brooklyn license grade A,” but I think the difficulty which he suggests as to section 1090 is more imaginary than real. In this proceeding the petitioners are not seeking promotion. They ask that their names be placed upon the special list for promotion, as otherwise they are rendered ineligible for promotion, and thus the very result is brought about which we are agreed cannot be, the *49forbidding of promotion to holders of license “ Grade A.” The fact that no ratings of the standing of the various holders of license “ Grade A ” have been preserved cannot be the fault of the teachers, but rather of the school authorities, who should not be permitted to take advantage of their own neglect or omission. Moreover, the return shows that upon the list of licenses “ Grade A” the names are arranged together in the order in which the said licenses were issued, an order which may well be followed in the absence of percentage ratings that under section 1101 of the revised charter cannot properly be demanded of holders of “ Grade A ” licenses.
Matter of Stebbins (41 App. Div. 269) may be easily distinguished from the case at bar, for in that case no eligible list had ever been filed, and the petitioner was seeking to compel the preparation of such a list, though there was no provision for the list, either by statute or by law, while in our present case a list of persons eligible for promotion to the four upper grammar grades has been filed and the board of superinten dents has been directed not to promote any one to such grades whose name is not upon it. Moreover, in the Stebbins case, the petitioner’s certificate made him eligible for appointment as “ principal of a school,” and he asked to have his name placed on a list to be prepared of the names of those eligible for appointment as principal of a high school. We said (p. 270): “ It is a complete answer to the application of the relator that there is in fact no eligible list for high school appointments, nor is any required by law, such a list being expressly excepted from the provisions of the statute.”
In the case at bar the petitioners are not seeking to control any discretion now vested in the board of education. The situation here is quite similar to that in the case of People ex rel. Goldey v. Maxwell (65 App. Div. 265; affd., 169 N. Y. 608), which seems to me to settle the question now before us. The court there held that the test of eligibility was the fact that the person named has received a license (the license there was received in 1875), and the relator’s name having been omitted from a special list made up of those who had been recently examined, from which list alone appointments were made, directed the issuance of a writ of mandamus. As the court say in that case (p. 267) : “ To construe the provisions as con*50tended for by the- city superintendent would necessarily make various provisions (of the charter) inconsistent with each other, while the view indicated gives effect to all of the provisions thereof, and is clearly within the intention of the Legislature.”
The presiding justice says that Miss Baum’s name is already on an eligible list for promotion, but the list to which he refers is the general list and not the list of those eligible to promotion. The holders of license grade A are entitled to have their names placed on the special list for promotion, and it is not within the discretion of the board of superintendents or of the city superintendent to invalidate their licenses by refusing to place their names on that list. The duty is neither judicial nor discretionary,, but is ministerial in character, and there being no other remedy, enforcement may be compelled by mandamus. (People ex rel. Harris v. Commissioners, 149 N. Y. 26.)
For these reasons, I think, the writ should issue for the relief sought for in the 2d paragraph of the petitioners’ prayer, and that the order appealed from should, therefore, be reversed.
Bartlett, Hirsohberg- and Hooker, JJ., concurred; Goodrich, P. J., read for affirmance.