In the Matter of Board of Education of Central School District No. 6 of the Towns of Bethlehem and New Scotland, Appellant, v. Ewald B. Nyquist, as Acting Commissioner of Education of State of New York, et al., Respondents

(February 15, 1965) In the Matter of Board of Education of Central School District No. 6 of the Towns of Bethlehem and New Scotland, Appellant, v. Ewald B. Nyquist, as Acting Commissioner of Education of State of New York, et al., Respondents. [MAJORITY] Memorandum by the Court: The grounds of petitioner’s application are enumerated in paragraph “ Fourteenth ” of its petition. The Commissioner’s determination of them is not arbitrary, nor is it without rational basis, as respects any of the issues thius presented. It must be noted, additionally, that, however circuitous the approach, the attack in this court proceeds upon constitutional grounds which petitioner did not plead and did not advance in its application to reopen or at Special Term; but were they here, the insufficiency of petitioner’s proof would prevent our reaching them, and the concession in respondent Commissioner’s brief that the school district is under the control of a religious denomination is not binding upon respondent Sagor or upon the court, and cannot be taken as a substitute for proof. Assuming that an additional constitutional question — the constitutionality of the special act creating the school district — was raised by the petition, although obliquely, the statements in Special Term’s decision and in respondent Sager’s brief that the question was eliminated by petitioner’s concession, are not contradicted. Order affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.