Sechrest v. Board of Education of Union Free School District No. 21 , 5 Misc. 2d 557 ( 1957 )

Marcus G. Christ, J.

The petitioner avails himself of the provisions of article 78 of the Civil Practice Act and seeks to be reinstated as a high school principal. The respondents, before answering, move to dismiss the petition and in support of the motion submit affidavits of an additional fact not appearing in the petition.

The motion must be made under section 1293 of the Civil Practice Act. It is in the nature of a demurrer and the petition must stand or fall by the strength of its own allegations which are, for the purposes of the motion, deemed to be true. Proof of additional facts by affidavit is not permitted upon such a motion (Matter of Mopes v. Swezey, 199 Misc. 997, affd. 278 App. Div. 959; Matter of Felice v. Swezey, 278 App. Div. 958).

In other respects the petition is valid and if uncontroverted states good grounds for relief. It alleges in paragraph 25 that petitioner was recommended by the district superintendent to be high school principal. It shows by Exhibit “ F ” petitioner’s notice of appointment by the board and his acceptance. It is alleged that he acted as principal for three years and was paid by the board in that capacity. The petition alleges that his services were discontinued without giving him the notice required by section 3013 of the Education Law. If these allegations are supported by the evidence, petitioner has been deprived of a substantial right.

Accordingly, respondents’ motions to dismiss the petition are denied. The respondents may serve answers within 10 days after service upon them of the order to be entered hereon, with notice of entry, so that the matter can be determined upon full papers or, if required, a trial of the issues.

Submit order.