By this ruling the court holds that a teacher must be permitted to withdraw from his school employment for 30 days during the school year, not because he is required to do so, but solely as a matter of choice, to attend Marine Reserve Training, and he must be paid by the school district and the Marine Corps while doing so.
*209I cannot believe the Legislature anticipated or intended this type of windfall to teachers. Clearly, the board of education did not. Its regulations required that military leave would be granted "provided such training and participation cannot be arranged, during periods when schools are closed.” The board also required that teachers demonstrate some sense of responsibility and professional loyalty towards their employment when it adopted a regulation that "all teachers should devote themselves faithfully and exclusively to the duties of the profession during the school year.” These rules and regulations govern the conduct of the parties with the same force as law if they do hot conflict with the Military Law (Matter of Stone v Gross, 25 AD2d 753, affd 19 NY2d 675) and in my judgment they do not. The regulations permit military service in accordance with the Military Law, but require that if a reservist is able to satisfy his reserve obligation when school is not in session, he must do so (see Stevens v Village of Endicott, 289 NY 655). Both the provisions of the Military Law and the board rules may be accommodated.
It should be pointed out that defendant was not ordered to duty because of an emergency or to satisfy any requirement of the Marine Corps. Nor was this a general assignment such as a regular summer encampment of the National Guard. Defendant requested this period of duty during the period of the school year. The record indicates that the Marine Corps was willing to adjust defendant’s orders to avoid interference with defendant’s job as a teacher if he so requested. The board asked defendant to request this change and to remain at school during the critical period just before and during final exams but he refused to do so. Despite the board’s denial of his requested leave, defendant absented himself from school (as he had done for several years past), protected by his tenure and relying on the provisions of the Military Law, thus forcing the board to hire substitute help to fulfill the educational obligation to defendant’s students.
Not only was this service not necessary in the interests of the Marine Corps, it was not necessary to enable defendant to maintain his reserve status or retirement benefits from military service. There was more than ample time during the summer interim in the school year for defendant to meet the Marine Corps’ requirements and even if such were not the fact, there were several study programs by which those re*210quirements could be supplemented and the major’s active duty requirement fulfilled.
So for 30 days each year the taxpayers must pay not only defendant’s school salary, but $1,600 per month, plus fringe benefits for his military service, and he is permitted to accumulate credits under two public retirement systems. On top of this the taxpayers must bear the cost of hiring a substitute teacher to fill defendant’s vacancy. Clearly, this decision serves neither the interests of the armed services, the board of education, the public generally, nor the defendant’s students. It serves only the private interests of Major Licata.
The order of Special Term should be reversed and plaintiffs motion for summary judgment granted.
Moule, J. P., Cardamone and Mahoney, JJ., concur with Dillon, J.; Simons, J., dissents in an opinion and votes to grant summary judgment to plaintiff.
Order reversed, without costs, and summary judgment granted to defendant in accordance with opinion by Dillon, J.