Opinion
May 16, 1949.
In a proceeding under article 78 of the Civil Practice Act to review the action of respondents, to set aside appellant's dismissal as a teacher, and for other relief, she appeals from an order dismissing her petition for insufficiency. Order reversed on the law, with one bill of $50 costs and disbursements, cross motions to dismiss the petition denied, and application of appellant granted, without costs, to the extent of directing respondent Langworthy to furnish to the district superintendent of schools a list and report including the name of appellant, directing respondent Hoffman to make a written report to respondent board of education recommending for appointment on tenure those persons on the principal's list and report who have been found competent, efficient, and satisfactory, and directing respondent board of education to appoint on tenure any or all of the persons recommended by the district superintendent of schools. In our opinion, section 3013 Educ. of the Education Law requires the principal to include the names of all teachers in the lists and reports he is required to furnish to the district superintendent of schools. The principal is vested with no discretion to determine who shall be recommended for appointment on tenure. Such discretion is vested solely in the district superintendent of schools. Since the proceeding is nominally called in the petition one to review a determination, but is actually one to compel performance of a duty specifically enjoined by law, the four months' limitation does not begin to run until after proof of respondents' refusal, following appellant's demand, to perform that duty. (Civ. Prac. Act, § 1286; Matter of O'Connell v. Kern, 287 N.Y. 297, 301.) Since there is no proof of such a refusal more than four months before the institution of the proceeding, the proceeding commenced September 2, 1948, is timely brought. Respondents are not granted permission to answer because it appears from their brief that they do not desire such permission and are willing that appellant be granted the relief to which this court believes she is entitled. Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.