#### Swartwood *v.*Walbridge.

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

School-Teacher and Trustee—Character of Employment—Assault and Battery.

The trustees of a public school may determine the employment of the teacher at pleasure, and the only remedy is on the contract; and a trustee is not liable, as for an-assault and battery, for using sufficient force to prevent a teacher from entering a school-house to continue teaching after she had received notice that she was discharged.

Appeal from circuit court, Steuben county.

Action by Sarah Swartwood against Philo Walbridge. Verdict and judgment for plaintiff, and motion for a new trial denied. Defendant appeals.

Argued before Dwight,-P. J., and Macomber and Corlett, JJ.

*J. W. Binning,*for appellant. *A. M. Burrell,*for respondent.

■ Dwight, P. J.

This was an action of assault and battery. The defendant was the trustee of a school-district in which the plaintiff had been for some time employed as the teacher of the school. The alleged assault was committed by the defendant in resisting an attempt by the plaintiff to force an entrance *863into the school-house, for the purpose, as she declared, of taking charge of the school after she had been notified by the defendant that she was discharged from her employment as teacher; and the question is distinctly presented, by several exceptions in the record, whether, the trustee of a public school has the power to discharge a teacher, either with or without cause, to the effect of terminating the employment of the teacher, and depriving him of his authority to continue in charge of the school. Of course, the trustee cannot by any act of his own, and without the consent of the teacher, abrogate an existing contract, which the latter has not violated, and stands ready to perform, so as to deprive the teacher of his remedy for a breach of the contract. *Finch*v. *Cleveland,*10 Barb. 290. But the question here is not whether the trustee may terminate the contract, but whether he may terminate the employment of the teacher at his pleasure. The answer to the question manifestly depends upon the relation in which the two stand to each other. If the position of the teacher were a public office, and the trustee the appointing power, we should expect to find the tenure of the office defined by the statute by which it was created. But there is no such office created or recognized by statute. The teachers of the public schools are not public officers, but simply the employes of the trustees of the schools in whose service they are employed. *People*v. *Board,*3 Hun, 177. They are not appointed, but hired, and the tenure of their employment must be governed by the same rule as that which applies to the case of every person employed in the service of another under a contract of hiring. That contract is one of which neither party can enforce specific performance. Ho employer can be compelled to retain in his employment a servant, of whatever grade or whatever the term of his employment, beyond the time when it suits his pleasure to dispense with his services; nor, .equally, can the person employed be compelled to continue in the employment beyond the limit of his pleasure and convenience. Either is of course liable to an action for a breach of the contract, but neither can employ restraint or force to compel performance on the part of the other. This rule, it is apparent, does not impair the obligation of the contract, but merely excludes one mode of enforcing its obligation. The housekeeper may discharge her cook, the keeper of horses may discharge his groom, the merchant his clerk or bookkeeper, the manufacturer his overseer or superintendent, notwithstanding an unexpired contract of employment, and the remedy of the person discharged is by his action for damages. He can neither compel specific performance of the contract by process of law nor maintain himself in his position by force. Of course the rule is reciprocal in its operation. Ho servant or employe can be compelled, either by legal or personal constraint, to continue to render the services contracted for. He may leave his employment whenever he sees fit, and the remedy of his employer is by action for breach of contract. Applying these principles to the case in hand, it seems that the teacher cannot be compelled to remain in the school and teach, nor the trustee to premit her to do so. The obligation of the contract, and the remedy for its violation, is the same for both. The remedy of the plaintiff, if discharged without cause, was not to force an entrance into the school-house in order to resume her duties as teacher, but to tender a continuance of her services, and recover her compensation as if those services had been actually rendered during the term of her employment. If she.mistook her remedy the defendant was justified in resisting force by force, and was liable in this action only for excess of force employed. The error of tie trial court was in holding and instructing the jury, in effect, that the trustee had no power to discharge the teacher from her employment except for good cause shown, and that the teacher, if discharged without such cause, had the right to continue in her employment without the consent of the trustee. For this error the judgment and order should be reversed, and a new trial granted, with costs to. abide the event.

All concur.