In the Matter of the Application of Sara G. Kearns and Others, Petitioners, Respondents, Appellants, for an Order against Board of Education of the City of New York, Appellant, Respondent

In the Matter of the Application of Sara G. Kearns and Others, Petitioners, Respondents, Appellants, for an Order against Board of Education of the City of New York, Appellant, Respondent. First Department, June 24, 1938. Jules Jacobs of counsel [Bernard Sternlight with him on the brief], for the petitioners. , Arthur Bainbridge Hoff, Jr., of counsel [Paxton Blair with him on the brief; William C. Chanler, Corporation Counsel, attorney], for the defendant. [MAJORITY — Per Curiam.] Per Curiam. The petitioners were never appointed to the position of clerical assistant and, therefore, should not be designated as such. In the absence of a valid appointment from a proper list, the petitioners may not be designated as incumbents, even though they performed the duties of that position. (Wood v. City of New York, 274 N. Y. 155; Farrell v. City of Buffalo, 118 App. Div. 597.) The order should be reversed, with twenty dollars costs and disbursements to the defendant, and the petition dismissed. Present — O’Malley, Townley, Untermybr, Dore and Cohn, JJ. Order unanimously reversed, with twenty dollars costs and disbursements to the defendant, and the petition dismissed.