to the appointing officer. the probationer shall be notified in writing that at the end of such period he shall, for that reason, not be retained; his retention in the service otherwise shall be equivalent to permanent appointment."

The board of education of the city of New York is composed of 46 men, who serve without compensation. Revised Greater New York Charter (Laws 1901, c. 466) § 1061. It is apparent that this board. cannot remain in continuous session and that much of its work must be left to committees. There are over 20,000 in the teaching corps alone. There are nearly 600 schools, with janitors, cleaners, and there are more than 800,000 pupils. Under these conditions, it was provided in section 1068 of the Revised Charter, as amended by chapter 476 of the Laws of 1914, that:

"The board of education shall have power, subject to the provisions of law and of this act, to enact by-laws, rules and regulations for the proper execution of all duties devolved upon the board, its member and committees, and upon the several local school boards, for the transaction of all business pertaining to the same, * for the proper execution of all powers vested in

it by law, and for the promotion of the welfare and best interests of the public schools and the public school system of the city in the matters committed to its care."

Under section 1093, as amended by chapter 688 of the Laws of 1913, it is provided in reference to the trials of teachers and others mentioned, that:

"The board of education shall then immediately proceed to try and determine the case, either in the board or by a committee of its body, and shall fix the penalty or punishment, if any, to be imposed for the offense, and such penalty or punishment shall consist of a fine, suspension for a fixed time without pay, or dismissal: Provided, however, that a vote of a majority of all the members of the board of education shall be necessary to impose the penalty of dismissal. The report of any committee holding such trial shall be subject to final action by the board, which may reject, confirm or modify the conclusions of the committee, and the decision of the board shall be final, except as to matters in relation to which, under the general school laws of the state, an appeal may be taken to the state superintendent of public instruction. In case the principal or other officer is acquitted, he shall

be restored to his position with full pay for the period of suspension."

Section 1100 gives the board of education the authority to investigate, through a committee, the conduct of its officers and employés. That section reads:

* *

"The board of education may investigate, of its own motion or otherwise, either in the board or by a committee of its own body, any subject of which it has cognizance or over which it has legal control, including the conduct of any of its members or employés or those of any local school board. Any action or determination of a committee appointed under the provisions of this section shall be subject to approval or reversal by the board which may also modify the determination of a committee in such way as the board shall deem proper and just, and the judgment of the board thereon shall be final."

The power of the committee on supplies to investigate and determine, subject to the revisory power of the board of education, as to the quality of petitioner's work, would seem to follow from the extent of the powers vested in the board of education necessarily requiring action through committees, from the rules of the board authorizing investigations by committees, and from authority. In People ex

rel. Horvay v. Board of Education, 156 N. Y. Supp. 65, Law Journal, June 17, 1914, the relator's position was abolished by the initiatory action of the committee. He sued for reinstatement, alleging bad faith and lack of power in the board of education to act through a committee. Justice Erlanger held that there was no question as to the power of a committee which was ratified thereafter. The order in that case was reversed upon a different ground in 164 App. Div. 930, 149 N. Y. Supp. 558. In People ex rel. Kaufman v. Board of Education, 166 App. Div. 58, 151 N. Y. Supp. 585, the same question was presented, and there the court said:

"We place no weight whatever on the argument that the board had no power to act through its regular committee. In the light of the legislation, and the rules of the board pertaining to the subject, the question is too clear for argument."

It has been held in People ex rel. Kastor v. Kearny, 164 N. Y. 64, 58 N. E. 14, that the probationer is entitled to his full three months. probation. It was afterwards held by this department in People ex rel. White v. Coler, 56 App. Div. 171, 67 N. Y. Supp. 652, that notice of dismissal might be given before the last day that the probationer would be dropped at the end of the period. The Kastor Case establishes the principle that a probationer is entitled to his full time of probation as far as may be possible. The appointment becomes permanent unless the probationer be notified within the three months that his work is unsatisfactory. If that notice must be given by the board. itself in the many thousand positions coming within this rule, it would require the board to sit in continuous session. With the power of a committee under the by-laws to investigate, it would follow from the necessities of the case that this committee had the power to notify the probationer of the unsatisfactory condition of his work and of the termination thereof consequent thereupon, subject to the confirmatory or revisory action of the board itself. It might well be held that the power of appointment given to this committee, subject to the confirmation of the board, involved the power to do any act necessary to make that appointment complete and permanent, or to prevent the same from becoming complete and permanent, subject to the revisory or confirmatory action of the board. If so, it would follow upon reason and authority that the action of the board thereafter had become retroactive to prevent the petitioner from becoming, at the end of his probationary period, a permanent employé of the department.

In People ex rel. Curren v. Cook, 117 App. Div. 788, 102 N. Y. Supp. 1087, this precise rule seems to have been held. There the petitioner, a clerk in the department of education, was suspended without pay. He was later tried, found guilty and dismissed. He sued to recover the salary which had accrued between his suspension and his removal. The Appellate Division, Second Department, held that the later dismissal was retroactive as of the time of suspension. While, therefore, we recognize the force of the reasoning of the learned justice at Special Term in reaching his conclusion, we are of the opinion, in the light of the statutes and of the rules adopted by the board itself in pursuance of those statutes, and of the demand of

public necessity in the administration of so large a department, that the committee had full power to notify the petitioner that his work was unsatisfactory, and that his employment would end at the termination of his probationary period, and that the ratification of the conduct of the committee, although after the termination of the probationary period, was retroactive, and effective to prevent petitioner's employment from becoming permanent for lack of notice under the

statute.

It follows that the order must be reversed, with $10 costs and disbursements, and the motion for a writ denied, with $50 costs. Order filed. All concur.

(170 App. Div. 227)

PEOPLE ex rel. CITY OF TONAWANDA v. FITZHENRY et al., County

Sup'rs.

(Supreme Court, Appellate Division, Fourth Department. December 1, 1915.) 1. MANDAMUS 121-TAXATION -913-DISPOSITION OF TAXES COLLECTEDRIGHTS OF COUNTIES AND CITIES-ACTIONS-PROPER REMEDY.

Where taxes collected by the county, and by statute made payable to the city, are converted by the county to its use, the city may by action seek a refund of the taxes, or in some cases it may also proceed by mandamus.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 255; Dec. Dig. 121; Taxation, Cent. Dig. §§ 1746-1750; Dec. Dig. 913.] 2. MANDAMUS 121-CERTIFICATION OF TAXES-NATURE OF DUTY-EFFECT ON REMEDY.

The duty of the county supervisors to certify taxes is purely ministerial, so that, so far as the character of the act sought to be compelled is concerned, mandamus is the proper remedy to enforce a certification of taxes. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 255; Dec. Dig. 121.]

3. MANDAMUS 3-WHEN PROPER-NATURE OF ACTS COMMANDED-PAST DUTIES.

Where the parties have an adequate action at law, but seek by mandamus to compel the performance of a past duty, the writ should be denied.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 8, 10, 11, 1634; Dec. Dig. 3.]

4. MANDAMUS 121-DISPOSITION OF TAXES COLLECTED-CONVERSION OF

MONEYS-EFFECT.

That taxes collected for the city by the county have been diverted to its own use and disbursed does not alone afford legal ground for denying an application for mandamus to compel the certification of taxes to the city, entitled by statute to receive them, but it may be a circumstance adding grounds for such refusal.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. § 255; Dec. Dig. 121.]

5. MANDAMUS 143-CERTIORARI-WHEN INVOKED.

Under the rule that certiorari is not applicable beyond a four-month limitation, the similarity of mandamus to certiorari provides ground for refusing the writ of mandamus beyond that limitation on the ground of laches.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 282-285; Dec. Dig.

143.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

6. MANDAMUS 159-PEREMPTORY WRIT QUESTIONS OF FACT-PROPRIETY OF WRIT.

Where the answer to an application for a peremptory writ of mandamus raises the issue of laches, the question presented is one of fact, and the writ to be granted may be alternative, but cannot be peremptory.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 324, 325; Dec. Dig. 159.]

Appeal from Special Term, Erie County.

Application by the People, on the relation of the City of Tonawanda, against James W. Fitzhenry and others, as Supervisors of the County of Erie, for a peremptory writ of mandamus. From an order of the Supreme Court, directing that the writ issue, defendants appeal. Reversed.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

Carleton H. White, of Buffalo, for appellants.
Seward H. Millener, of Buffalo, for respondent.

LAMBERT, J. This proceeding seeks to compel the board of supervisors of the county of Erie to convene and pass a resolution directing the county treasurer of the county of Erie to pay to the city of Tonawanda the sum of $2,840.53, which sum represents taxes upon the capital stock of the First National Bank of Tonawanda, collected during the years 1908 to 1913, inclusive, less the fees of the county treasurer, and plus interest from the respective dates that same was received in such treasury.

The county of Erie, like many other counties throughout the state, seems to have misconstrued the provisions of the tax law relating to bank taxes and deemed itself entitled to retain moneys received from that source. The right to these taxes is regulated by section 24 of the Tax Law (Consol. Laws, c. 60). Under the construction given that statute in City of Utica v. Board of Supervisors, 109 App. Div. 189, 95 N. Y. Supp. 839, and similar cases, the city of Tonawanda claims these moneys.

[1] The question arises upon this appeal as to the procedure. The appellant contends that mandamus is inappropriate, and that, if appropriate, it should have taken the form of alternative mandamus, rather than peremptory. The history of the law involving the right of the city to these moneys is very fully and comprehensively discussed in City of Buffalo v. County of Erie, 88 Misc. Rep. 591, 151 N. Y. Supp. 409, affirmed at this term, 156 N. Y. Supp. 73. That case is identical with this in its essentials; the one seeking restitution to the city of Tonawanda, and the other to the city of Buffalo. The respective counsel have adopted different roads to the same end. In the Buffalo Case the remedy is sought by action, and in this case by mandamus. That action is an appropriate remedy seems to be settled. Strough v. Board of Supervisors, 119 N. Y. 212, 23 N. E. 552; Woods v. Board of Supervisors, 136 N. Y. 403, 32 N. E. 1011. It seems equally well established that, under some circumstances, mandamus is also proper. People ex rel. v. Owens, 110 App.

For other cases see same topic & KEY NUMBER in all Key-Numbered Digests & Indexes

Div. 30, 96 N. Y. Supp. 1054; People ex rel. v. Cobleskill, 140 App. Div. 769, 126 N. Y. Supp. 259.

[2] There is no obstacle in the way of allowing mandamus, arising through the character of the statutory duty of the supervisors, to make a certificate. People ex rel. v. Cobleskill, above referred to, decides that the duty of making such a certificate is purely ministerial and involves no judicial function, so that, so far as the character of the act sought to be compelled is concerned, mandamus is proper.

[3] As a practical proposition, however, it is best that the application of mandamus should be limited to those instances where it is sought to enforce a present duty, as distinguished from one arising years since. If the board of supervisors should this year fail to make a proper certificate, they might well, upon timely application, be compelled by mandamus to do it, and with perfect propriety. But when their failure to make the certificate occurred years since, courts should be hesitant to compel such action by mandamus at such late day, but should leave the parties to the adequate action of law. While this record does not disclose the state of finances of the county, nor indicate what has become of the particular moneys involved, it may perhaps be assumed that the moneys in question have gone into the general fund and been diverted to other purposes. It is not made to appear but that present disbursement by the treasurer would involve taking for that purpose moneys not properly applicable thereto. It may be that a tax levy will be essential to properly meet the situation created by the assertion of this claim, and hence the speedy justice sought by mandamus quite likely would involve and embarrass the orderly management of the finances of the county.

[4] It is true that, even if the money's have been diverted, that circumstance in and of itself affords no legal ground for denying this application. People ex rel. v. Owens, 110 App. Div. 30, 96 N. Y. Supp. 1054. But if a reversal may be properly predicated upon other grounds, the possible disruption of the orderly management of the county finances may afford additional logical reason for the denial of the application.

[5] There seems to be no statutory limitation upon the right to mandamus, but the courts have frequently asserted that, because of the similarity between this writ and that of certiorari, the four-month limitation applicable to certiorari may be properly applied to mandamus. This reasoning does not lie in statutory limitations, but rests upon the doctrine of laches. People v. Greene, 87 App. Div. 346, 84 N. Y. Supp. 565; Matter of McDonald, 34 App. Div. 512, 54 N. Y. Supp. 525. It would seem, therefore, that this application may be denied upon the ground of laches, in that the application was delayed for so long a time after the right to the writ arose. In furtherance of a proper practical result, that doctrine may be here applied without harshness, thus leaving the city to its remedy by action. This will afford the county opportunity to make preparation for the payment of these moneys, in case it is necessary. Except where good excuse for the delay appears, the rule should be that these applications for mandamus, unless brought promptly and when the duty sought to be enforced is present in character, will be denied.