Millicker v. Board of Education 275 A.D.2d 849

In our opinion, section *8503013 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. Prae. 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.