App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

ents, and a letter was there shown to her purporting to be written by her to another school teacher, which she was asked to explain. After such explanation was received, such board, by a unanimous vote, removed the relator as a teacher in the public schools, and such removal was duly approved by four of the five school inspectors of the district. The relator appealed to the board of education, but that appeal was dismissed and the action of the board of superintendents affirmed. In this proceeding the relator seeks to review the action of the board of school superintendents in removing her, the act of the inspectors of the district in approving such removal, and the action of the board of education in refusing to reinstate the relator.

By section 18 of chapter 387 of the Laws of 1896, in force at the time the relator was removed, the board of school superintendents was constituted; and by section 26 of this act it was provided that "said board of school superintendents may, by like vote, remove teachers employed therein, other than principals and vice-principals, provided the removal of any teacher be approved in writing by a majority of the inspectors of the district. Any teacher so removed shall have the right to appeal to the board of education, under such rules as it may prescribe, and the said board shall have power, after hearing the answer of the inspectors and of the board of school superintendents, to reinstate the said teacher." Under this provision the board of school superintendents had the power to remove any teacher in the public schools, except principals and vice-principals, subject only to the approval in writing of a majority of the inspectors of the district. No notice to the teacher was required. No trial was to be had. The subject of such removal rested in the discretion. of the board of school superintendents. When the removal was approved by a majority of the inspectors of the district, such removal became final, subject to an appeal to the board of education, and the court has no power to review the action of the board of school superintendents or of the inspectors of the district. It was so decided in the case of People ex rel. Gorlitz v. Board of Education (52 N. Y. Super. Ct. 520), and followed in the case of People ex rel. Fisk v. Bd. of Education (69 Hun, 213; affirmed by the Court of Appeals, 142 N. Y. 627). Those cases were under section 1042 of the Consolidation Act (Chap. 410 of the Laws of 1882),

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. which provided that "any teacher may be removed by the board of education upon the recommendation of the city superintendent or of a majority of the trustees for the ward, or of a majority of the inspectors for the district." It was held that that provision gave the board of education the power to remove a teacher without cause asserted or shown or an opportunity to be heard against the removal. The language in the act now under consideration confers the same power upon the board of school superintendents, provided that the removal of any teacher is approved in writing by a majority of the inspectors of the district.

Upon the action of the board of school superintendents, approved by a majority of the inspectors of the district, the relator was removed from the position occupied by her as a teacher in the public schools of the city of New York. That power being vested in the board of school superintendents, the court is powerless to review such action. The only remedy that the relator had after such removal was an appeal to the board of education. The relator, on or about the 1st day of December, 1897, took an appeal to the board of education, and it would appear that such appeal was by the board referred to the committee on instructions under the rules and regulations of the board. That committee notified the relator, who attended with counsel, and the committee appears to have taken the statement of the relator and others, and on the 26th day of January, 1898, reported to the board that "the matter has been carefully investigated and the Committee has decided to recommend that the appeal be dismissed;" and the committee submitted to the board for its action a resolution dismissing the appeal and affirming the action from which such appeal was taken. That report came before the board for consideration on January 31, 1898, when the board ordered that the report and all the evidence and papers in the case be referred to the school board for the boroughs of Manhattan and the Bronx.

On February 1, 1898, the provisions of the new charter of the city of New York, so far as they affected the board of education, came in force. By section 1114 of the charter (Laws of 1897, chap. 378) provision is made for the presentation of charges to the school board against a teacher in any of the public schools, and for a trial and determination of such charges, either by the board or by a cou

App. Div.] mittee of the board, and for fixing the fine, penalty or punishment, if any, which shall be imposed for the offense; such fine, penalty or punishment to consist of a fine, suspension for a fixed time without pay, or dismissal; and "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."

FIRST DEPARTMENT, MARCH TERM, 1899.

The report of the committee of the board of education coming before such school board, the resolution proposed by the committee dismissing the appeal and approving the action of the board of school superintendents was adopted, a majority of the members of the board voting in favor thereof. By the action of the board of superintendents, approved by a majority of the inspectors of the district under section 26 of the act of 1896, the relator was removed as a teacher in the public schools. That removal was subject to a review by the board of education, as then constituted, upon an appeal by the relator from the action of the board of school superintendents, but until that action of the board of school superintendents had been reversed or the relator reinstated as a teacher, she no longer held such position. Upon the new charter coming in force with this appeal of the relator to the board of education pending and undisposed of, the power to review the action of the school superintendents vested, under section 1058 of the charter, in the board of education of the city of New York as created thereby, or the school boards of the various boroughs as created by the charter, "and such duties shall be deemed under this section to be devolved upon the said board of education or the school boards in the same manner as similar duties are devolved upon the said board of education or the school boards of the boroughs by this act.” As by section 1114 of the charter the hearing of all charges against teachers and the power to remove a teacher in any of the public schools vested in the school board of the borough within which the school was located, this power to determine the appeal evidently vested in the school board of the boroughs of Manhattan and the Bronx. Acting under the authority that devolved upon that school board under the provisions of the charter, the board dismissed the appeal of the

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38

relator, refused to reinstate her and approved the action of the board of superintendents in removing her from her position. Thus it would appear that the appeal of the relator to the board of education had been unsuccessful, and the board to whom the appeal had been taken refused to reinstate her. There is nothing in the action of the board of education or the school board for the boroughs of Manhattan and the Bronx that is subject to review by the court upon certiorari.

The writ is, therefore, dismissed, with costs.

VAN BRUNT, P. J., PATTERSON, O'BRIEN and MCLAUGHLIN, JJ., concurred.

Writ dismissed, with costs.

THE FOURTH NATIONAL BANK of the City of New York, Respondent, v. BERNARD MAHON, Appellant.

Promissory note

-evidence of a right to enforce payment thereof by an indorsee — a defense that the plaintiff is not the real party in interest must be pleaded. In an action upon a note drawn by the defendant to his own order, its production upon the trial, indorsed by the defendant, and by his indorsee, who received it before maturity for value, indorsed to the plaintiff or order, is evidence that the plaintiff is the legal holder of the note and entitled to enforce it.

A defense that the plaintiff is not the real party in interest, when not alleged in the answer, is not available upon the trial.

APPEAL by the defendant, Bernard Mahon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1898, upon the report of a referee.

Abram J. Rose, for the appellant.

David Willcox, for the respondent.

INGRAHAM, J.:

The action was on a promissory note made by the defendant, payable to his own order, indorsed by him and discounted by the Halifax Banking Company, who transacted business at St. John, N. B., and who indorsed the said note before maturity, paying the full

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

value thereof, less interest. The Halifax Banking Company thereby became the bona fide owner of the note, having received it before maturity for value, and was entitled to enforce it against the defendant, irrespective of any equities between the original parties to the note. No evidence was offered by the defendant to show that the note was not a bona fide obligation of the defendant, or that any defense existed. The note was produced upon the trial by the plaintiff, and indorsed by the defendant, one John Connor, and by the Halifax Banking Company, to the plaintiff, or order. That indorsement made the plaintiff the legal holder of the note, and he was entitled to enforce it. (Sheridan v. Mayor, 68 N. Y. 30.) "It is sufficient to make the plaintiff the real party in interest if he have the legal title, either by written transfer or delivery, whatever may be the equities between him and his assignor." (Hays v. Hathorn, 74 N. Y. 486, 490.) No defense was set up in the answer alleging that the plaintiff was not the real party in interest. No such defense was available to the defendant upon the trial.

The defendant was liable for the note which had been indorsed to, and which was in the possession of, the plaintiff, and no reason was shown why the plaintiff should not have judgment for the amount due.

The judgment should be affirmed, with costs.

VAN BRUNT, P. J., PATTERSON, O'BRIEN and MCLAUGHLIN, JJ., concurred.

Judgment affirmed, with costs.

ABRAHAM CHARLES FINKEL and RAPHAEL FINKEL, Appellants, v. ARNOLD KOHN and THE STATE BANK, Respondents.

Written contract to convey property which may be bought in at a foreclosure saleconstruction thereof in disregard of the exact terms of the agreement — when equity will not specifically enforce it.

After a judgment of foreclosure and sale had been entered in an action brought by a bank to foreclose a second mortgage, one Kohn, the vice-president thereof, having no interest in the mortgage except as an officer of the bank, on the day before the foreclosure sale entered into an agreement with one Finkel, under the terms of which the premises were to be purchased at such