Opinion
June 27, 1949.
Present — Nolan, P.J., Johnston, Adel, Sneed and MacCrate, JJ.
On the court's own motion, the decision handed down June 13, 1949 ( ante, p. 950), is amended to read as follows: In a proceeding under article 78 of the Civil Practice Act, directed against the respondents, comprising a central high school district board of education, to review and annul their resolution discontinuing petitioner's services as a teacher during a probationary period fixed by respondents pursuant to section 3013 Educ. of the Education Law, petitioner appeals from an order which dismissed her petition, on motion, for the reason that it was insufficient in point of law. (Civ. Prac. Act, § 1293.) Order unanimously affirmed, with $10 costs and disbursements. The petition fails to allege any fact which shows respondents acted in bad faith or contrary to law. It must be assumed that when the Legislature in 1945 enacted section 3013 Educ. of the Education Law it was aware of the repeated decisions by the Commissioner of Education, as well as the expressions in judicial opinions, that unlimited discretion was vested in a board of education, in a district of the character here involved, by identical provisions of law enacted in 1917 and in 1937, now found in sections 2523 Educ. and 3012 Educ. of the Education Law. ( Matter of Liebler, 64 N.Y. St. Dept. Rep. 206; Matter of Payne, 42 N.Y. St. Dept. Rep. 382; Matter of Coleman, 22 N.Y. St. Dept. Rep. 322; Matter of Bomar v. Cole, 177 Misc. 740; Matter of Carter v. Kalamejski, 255 App. Div. 694.) (See, also, Walcott v. Fisher, 274 App. Div. 339, affd. 299 N.Y. 688.)