(dissenting). The first partial defense shows on its face that the plaintiff was appointed in fact not for temporary service but for service on an annual basis; that such appointment of plaintiff was continuous for over ten years; and that plaintiff’s salary increments ceased on January 1, 1932, not because he was a so-called “ temporary instructor ” (no such classification existing), but because he had not been granted a Ph. D. degree. The defense therefore is that defendant had a bylaw requiring a Ph. D. degree for instructors and plaintiff did not have such degree. In Matter of Adams v. Board of Higher Education (263 App. Div. 804, affd. 288 N. Y. 652) the Ph. D. salary-pegging provision was adopted as a purported amendment to the filed schedule. Here it was used as a special limitation applied to plaintiff from 1933 on. This is a distinction without a difference. This court and the Court of Appeals held the Ph. D. salary pegging was illegal in violation of section 889 of the Education Law. The Ph. D. salary-pegging rule applied to this plaintiff is equally illegal.
Accordingly, I dissent and vote to affirm.
G-lennon and Cohn, JJ., concur with Callahan, J.; Dore, J., dissents and votes to affirm in opinion in which Townley, J., concurs.
*192Judgment reversed with costs, and the order modified by-denying the motion to strike out the first partial defense and, as so modified, affirmed. [Se'e post, p. 819.]