(dissenting). The majority is of the opinion that the petitioner obtained tenure as a principal in the elementary school field on June 30, 1958, despite the fact that he never had a certificate of qualification in that field and could not have been appointed to such a position. The majority is also of the opinion that petitioner did not obtain tenure as a principal in the secondary school field, in which field he eoncededly had a certificate of qualification and in which field he held a position for six years. I cannot subscribe to such an incongruous holding.
In my view, there are two questions presented on this appeal: (1) Is the position of principal of a junior high school “ similar ” to that of a principal in the senior high school; and (2) Did petitioner obtain tenure as a principal in the secondary school field on June 30, 1958? If the answer to both questions is in the affirmative, then petitioner was entitled to appointment as principal of the Beacon High School on August 10, 1961 (Education Law, § 2510, subds. 2, 3). If the answer to the first question only is in the affirmative, then petitioner was entitled to appointment as principal of the Beacon High School on July 1, 1962 (Education Law, § 2510, subd. 3).
A statement of the facts in chronological order will be helpful in the expression of my views:
On February 18, 1954 petitioner was granted a certification as a secondary school principal. This certification entitled him to appointment as principal in any high school, either junior or senior. It did not entitle him to appointment as principal of an elementary school.
On August 9, 1954 the respondent separated the junior high school from the senior high school. On August 11,1954 respondent appointed petitioner as principal of the junior high school, effective September, 1955. On June 30, 1958 petitioner’s probationary period ended and he was granted tenure.
From September 1, 1959 to June 30, 1960, petitioner served as acting principal of the senior high school by appointment of the respondent. Effective July 1, 1960, respondent appointed Dr. Bishop as principal of the Beacon High School. Effective February 1, 1961, respondent appointed Mr. Whearty as principal.
On August 10, 1961, respondent abolished the position of junior high school principal and consolidated its functions with that of principal of the senior high school. On August 15, 1961, petitioner demanded that he be appointed principal of the senior high school; and on August 25, 1961 he instituted this article 78 proceeding to compel such appointment.
*167On July 1, 1962 a new principal of the Beacon High School was appointed. The order dismissing this proceeding was entered on July 18, 1962.
The statute (Education Law, § 2510, subd. 3) provides that, if an office or position is abolished or consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled, without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.
That petitioner’s record was one of faithful, competent service in the position of principal of the junior high school prior to the time of the consolidation of such position with the position of senior high school principal on August 10, 1961, is not disputed.
In Matter of Taylor v. Board of Educ. (269 App. Div. 905, affd. 295 N. Y. 882) it was held that the positions of principal of junior high school and principal of senior high school were similar as a matter of law, based on evidence that: (a) the salary schedules for principals of both schools were the same; (b) the principal’s certificate was valid for service as principal of a public secondary school; (c) the Regulations of the Commissioner of Education (§ 116, subd. 22) defined a junior high school as a secondary school; and (d) the same regulations (§ 127) provided for the same qualifications in education and experience for certification as principal of both types of school. This court held it to be immaterial that, in comparison with a junior high school principal, the duties of a senior high school principal consisted in supervising a greater number of employees, custodial help, guidance directors, teachers, and pupils. This court pointed out that the difference in size of the school, or in the number of pupils registered, or the attendance, or the more extensive curriculum in the senior high school did not establish dissimilarity in the positions. This court also held that the Board of Education itself, by its own action: (a) in requiring the same qualifications for both junior and senior high school principals; (b) in requiring the same State certificate; and (c) in maintaining the same salary schedules for the position of principal in other secondary schools in its system, has established that all secondary school principalships in its system are similar.
*168The same facts in the case at bar mandate the same determination as in the Taylor case. That respondent was of the opinion that the positions of principal of junior and senior high school were similar, is also clear from the fact that respondent appointed petitioner as acting principal of the senior high school from September 1, 1959 to June 30, 1960, and from the fact that it consolidated the senior and junior high school principalships and placed one man in charge of the combined school.
Since petitioner’s position as junior high school principal was similar to that of senior high school principal, the petitioner, on August 10, 1961 (when the position of junior high school principal was abolished and its functions consolidated with that of senior high school principal) was entitled to be placed upon a preferred eligible list of candidates for appointment to a vacancy which then existed or which might thereafter occur in the position of senior high school principal (Education Law, § 2510, subd. 3).
The next question is that of tenure. Subdivision 2 of section 2510 of the Education Law provides that, whenever a Board of Education abolishes a position, the service of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued. In my opinion, this means that, if petitioner had obtained tenure as principal of a secondary school and had such tenure on August 10, 1961, respondent was required: (a) to discontinue the services of Mr. Whearty as principal of the Beacon High School because the latter had less seniority than petitioner; and (b) to appoint petitioner to the principalship.
The predecessor of present subdivision 2 of section 2510 of the Education Law was chapter 754 of the Laws of 1940 (then Education Law, § 881, subd. 2-a). In 1943 the Commissioner of Education decided (Matter of Feldbauer, 65 N. Y. St. Dept. 68) that tenure classifications naturally fell into secondary and elementary level of teachers, principals, etc. The decision in that case was that the breaking point between elementary and secondary levels was at the eighth grade. The basis for such decision was: (a) that State aid was apportioned to school districts based on the elementary school field (then regarded as grades 1 through 8) and on the secondary school field (then regarded as grades 9 through 12); and (b) that the salary schedule for teachers broke as between grades 1 through 8, and 9 through 12.
The Feldbauer decision was followed in 1947 by Matter of Fafard v. Board of Educ. (273 App. Div. 788, affg. 71 N. Y. S. 2d 400). There, while the petitioners had certificates only as *169elementary school teachers, they were assigned and tanght elementary subjects in the seventh and eighth grades in the junior high school for several years. It was held that the petitioners did not thereby become junior high school teachers, and therefore, when the junior high schools were abolished, their positions as junior high school teachers were not abolished since such positions had never been created.
Effective July 1, 1948 the Legislature enacted a statute (L. 1948, ch. 116) which caused the difference between elementary and secondary education to break at the sixth grade by providing that State aid was to be apportioned to school districts based on the elementary level defined as grades 1 through 6, and the secondary level defined as grades 7 through 12.
Effective July 1, 1951, the Legislature enacted a statute (L. 1951, ch. 756) directing that all teachers, whether on the elementary or secondary level, be paid the same salary scale.
Therefore, after July 1, 1951, the two bases for breaking the elementary and secondary levels (for purposes of tenure) at the eighth grade, promulgated in Matter of Feldbavter (supra), no longer existed. The reasoning of the Feldbauer case required that the breaking point between the elementary and secondary levels be now held to be at the sixth grade.
When petitioner received tenure on June 30, 1958, after having served as principal of the junior high school for three years, he could receive such tenure only as a principal of a secondary school. There were no classifications of tenure as principal of elementary school and as principal of high school. The classifications were only principal of elementary school and principal of secondary school. Petitioner did not have a certificate of qualification as principal of elementary school. He had never been appointed a principal of elementary school and could not have been so appointed. He had never taught in elementary school. His only assignments had been for 14 years as teacher in the senior high school, and since September, 1955 as principal of the junior high school. Therefore, the only tenure petitioner could and did receive on June 30, 1958 was as principal of a secondary school (cf. Matter of Taylor v. Board of Educ., 269 App. Div. 905, affd. 295 N. Y. 882, supra).
Matter of Tram (No. 6539, decided by the Commissioner of Education on September 19, 1958 [1 Ed. Dept. Rep. 184]) merely created two tenure areas on the secondary level out of what had previously been one tenure area (to wit, tenure in the senior high school and tenure in the junior high school); but it was expressly held that tenure attained prior to the date of the decision was not affected. Applied to this petitioner, the *170decision meant that petitioner had tenure not only as a secondary school principal, but also as a junior high school principal.
Since: (a) the positions of junior high school and senior high school principal were similar; (b) petitioner had been granted tenure as a secondary school principal; and (c) Mr. Whearty was then junior in service to petitioner, the petitioner was entitled as of right to be appointed to the position of principal of Beacon High School on August 10,1961.
In any event, regardless of tenure, petitioner was entitled to the position of principal of the Beacon High School on July 1, 1962, i.e., after Mr. Whearty left the principalship and a vacancy had been created (Education Law, § 2510, subd. 3). The order having been entered on July 18, 1962 after the creation of the vacancy, petitioner should have been granted the appointment at least as of July 1, 1962.
Accordingly, the order should be reversed and the petition should be granted to the extent here indicated.
Ughetta, Hill and Babih, JJ., concur with Christ, J.; Beldock, P. J., dissents and votes to grant the petition to the extent therein indicated, in opinion.
Order affirmed, without costs.